|The ZIMBABWE Situation||Our
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- may peace, truth and justice prevail.
24 May 2005
On May 26 2005 two of South Africa’s foremost constitutional lawyers will appear in Zimbabwe’s Supreme Court to mount the most serious legal challenge yet to the continued incarceration of the country’s celebrated prisoner of conscience, Roy Bennett. Due to appear before Zimbabwe’s highest court in Harare on Bennett’s behalf are Advocates Chaskalson SC and Gauntlett SC.
Roy Bennett was elected Member of Parliament for Chimanimani constituency in the 2000 Parliamentary elections. He is a leading member of the opposition Movement for Democratic Change (MDC) party who enjoys a huge popularity among his rural, almost entirely black, constituents.
Fluent in the vernacular he was, until his forcible ejection from his farm in the eastern highlands, a successful coffee farmer, and respected as a good employer who had the interests of his employees very much at heart.
Prior to the year 2000 he had been a staunch supporter of ZANU PF but, in response to the increasing levels of corruption and nepotism in the ruling party, he threw his weight behind the fledging opposition movement.
Despite receiving death threats from senior ZANU PF politicians, a police commander and the local Central Intelligence Organisation (CIO) boss, Bennett stood for the MDC and won by a huge margin.
He could hardly have imagined then the cascade of persecution which would follow, not only for himself and his family but for employees and those associated with him in any way.
The record from 10 May 2000 onwards shows a catalogue of vicious crimes directed against them by state sponsored agents. His farm, Charleswood Estate, suffered no fewer than 89 illegal invasions.
Roy Bennett himself was arrested twice illegally and assaulted three times. His wife, Heather, then pregnant, was abused and held hostage with the result she lost the baby. Three young female employees were raped. A 24-year old employee was murdered and another was shot and wounded.
Bennett’s farm manager’s house was burnt to the ground. Over 800 men and women (employees and their families) were chased from their homes. 700 head of cattle were stolen, others were axed and speared to death. The proceeds of 150 tonnes of coffee were stolen. The family home was looted and trashed.
While all this mayhem was continuing on his farm Bennett obtained no few fewer than seven court orders upholding his legal rights to the property. Yet those orders were contemptuously ignored by the ZANU PF chefs who continued with their plundering and illegal occupation.
Chief among the opportunist politicians to defy court orders and profiteer at Bennett’s expense has been Major General Mike Nyambuya, the ZANU PF governor for Manicaland. The ruling party has carried out a systematic campaign of violent persecution against Bennett, stripping him of his home, his farm and his livelihood, while at the same time inflicting huge suffering on those close to him. ZANU PF’s coup de grace was to remove Bennett’s liberty and deprive his constituents of their elected representative in Parliament.
On 18 May 2004 there was an incident in Parliament. The Attorney General, Patrick Chinamasa, engaged in a verbal attack on Bennett. He, the government’s chief legal adviser whose administration was openly flouting the law, taunted the Member of Parliament for Chimanimani that his white ancestors were thieves and murderers. The irony could not have been greater.
Unfortunately it proved just too much for Bennett, who responded by pushing Chinamasa to the floor. A brief scuffle ensued in which Bennett himself was assaulted and kicked while he lay on the floor by another ZANU PF MP, Didymus Mutasa.
The rest as they say is history. Parliament duly set up a Committee under the Privileges, Immunities and Powers of Parliament Act to investigate the incident. The composition of the Committee reflected the balance of power in Parliament, there being three ZANU PF members and two MDC.
All concurred that Bennett was guilty of a contempt of Parliament but thereafter the Committee and Parliament split on party lines. The ZANU PF members of the Committee recommended a penalty of unprecedented severity, namely imprisonment with hard labour for 15 months, with three months suspended.
The MDC members of the Committee voted against the imprisonment. The report was referred to Parliament which, despite hearing an unconditional apology from the offending MP, voted, again on strictly party lines (53-42), to carry out the recommended sentence.
In effect therefore, ZANU PF which was the complainant and had a direct interest in the case, had set up the investigating committee, had dominated that committee and again had dominated Parliament which received and acted on the committee’s report – thereby ensuring the outcome desired by the party.
ZANU PF had arrogated to itself the right to be informant, prosecutor, witness, judge and jury – yes, and executioner too! It was a blatant case of political and racial bias. The ruling party had abused its Parliamentary majority in order to indulge its hatred of the man whom, more than most, it loves to hate. In so doing it stood in breach of the most fundamental tenets of natural justice.
Which is where the lawyers come in. Since October last year Roy Bennett has been languishing in one or other of Mugabe’s filthy, over-crowded, germ-infested prisons. He is now held at the Chikurubi maximum security prison in which conditions are among the worst in the country.
He has lost 27 kilograms in weight and is a gaunt shadow of his once robust self. Family and friends are very concerned about his health within this unhygienic environment in which the only food prisoners receive is said to be unfit for human consumption.
Meanwhile his lawyers have mounted a number of legal challenges to his continued incarceration. The record to date shows interminable delays, postponements and plain procrastination by those charged under the Constitution with ensuring a ready access to justice for subjects whose rights have been infringed.
The latest challenge which reaches the Supreme Court on Thursday this week touches on some fundamental constitutional issues. Bennett’s lawyers – among the most brilliant in the field – will be arguing both that the proceedings in which he was convicted and sentenced, and those sections of the Act under which the punitive action was taken, were alike ultra vires the Constitution.
Their case will be that Bennett was denied an impartial hearing to which every accused is entitled. It is a part of their case too that the members of ZANU PF who convicted and sentenced Bennett themselves had a direct interest in the decision they were making – since by preventing Bennett from sitting in the House they created a vacancy in his constituency. (In fact Bennett was subsequently disallowed from standing for the seat in the Parliamentary elections on March 31)
The appeal also raises the issue of Parliament’s failure to censure the misconduct, in the same incident, of the two ZANU PF MPs, Patrick Chinamasa and Didymus Mutasa.
The lawyers are expected to point out how undesirable (and prejudicial) it was that the two were allowed to remain in Parliament and vote to convict and sentence Bennett, without Parliament having any regard to the question of their own culpability.
In essence the case for Bennett is that he was a victim of a well-orchestrated plan to fix him by ZANU PF, for which their Parliamentary majority provided the means. This raises issues of political oppression and racial discrimination which, within the current tense political climate in Zimbabwe, are extremely sensitive to say the least.
The Supreme Court will also be asked to consider whether the punishment meted out was not grossly disproportionate to the offence. For such an offence of common assault by a first-time offender a criminal court would normally impose only a modest fine or even a caution and discharge.
Considering the provocation suffered by Bennett and the unconditional apology he offered, the sentence imposed was all the more inappropriate.
Another constitutional point to be argued before the Supreme Court concerns the validity of Section 16 of the Privileges, Immunities and Powers of Parliament Act, which Bennett’s lawyers will say violates the crucial constitutional principle of the separation of powers between the legislature and the judiciary.
This case therefore brings squarely before Zimbabwe’s highest court matters of the utmost importance concerning a citizen’s constitutional rights to liberty and to a fair trial in respect of any offence with which he is charged.
It calls into question the use by the ruling party of the Parliamentary majority they enjoy in order to “fix” a member of the opposition who may have incurred their particular displeasure.
By raising these issues Bennett is forcing the Supreme Court to consider fundamental matters of natural justice and the observance of basic human rights conferred and protected by the Constitution.
Even more fundamentally the case directs attention to the crucial separation of powers of state upon which every subject’s constitutional rights ultimately depend. It is therefore, on any reckoning, a major case which deserves the nation’s – and the region’s - closest scrutiny.
Clearly Roy Bennett would be the first to benefit from a favourable ruling. It would follow that he should be released from custody forthwith, rather than having to wait until June 28 when he might otherwise expect his freedom, taking account of the normal remission of sentence for good behaviour.
All the freedom loving people of Zimbabwe who salute Bennett as a champion of truth and justice, welcome that outcome. The nation stands ready to support this courageous warrior for truth and justice who has suffered so grievously in the struggle for freedom.
But as we have indicated the issues raised in this case go considerably further than Roy Bennett and his immediate right to liberty.
It is widely acknowledged that most of the Judges of the Supreme Court owe their present position to political patronage rather than to any great legal acumen or judicial experience.
Nevertheless it is to be hoped that on this occasion at least when the eyes of the nation are upon them, and they are under the intense scrutiny of the international legal fraternity, as represented by the eminent South African Counsel who will be representing Bennett, that Chief Justice Chidyausiku and those sitting with him will remember that they are charged and required under the Constitution to dispense justice to all with fear or favour.
In the final analysis it is they rather than Roy Bennett who are on trial in this instance, and though their past record gives one little hope they will have the judicial courage or independence to stand up to an overbearing Executive or a compromised Legislature, let us hope that in this case sheer legal professionalism will prevail.
If it does not, then the Supreme Court of Zimbabwe will have shown the world it can no longer be regarded in any sense as the guardian of the rights and freedoms of ordinary Zimbabweans.
Submitted by Sokwanele (Zimbabwe)
IN THE SUPREME COURT OF ZIMBABWE
Case No: SC 16/05
In the matter between:
ROY LESLIE BENNETT Applicant
EMMERSON DAMBUDZO MNANGAGWA
In his capacity as the Speaker of the
PARLIAMENT OF ZIMBABWE First Respondent
PAUL MANGWANA Second Respondent
JOYCE MUJURU Third Respondent
CHIEF MANGWENDE Fourth Respondent
WELSHMAN NCUBE Fifth Respondent
TENDAI BITI Sixth Respondent
THE ATTORNEY-GENERAL Intervener
APPLICANT’S HEADS OF ARGUMENT
1. This matter concerns the constitutional validity of
1.1. the proceedings in terms of which the applicant was convicted by Parliament and sentenced to 15 months’ imprisonment arising from a decision by the majority of Parliament that one of its members, the applicant, was guilty of contempt. The majority of Parliament thereupon sentenced the applicant to 15 months’ imprisonment with hard labour, three months of which were suspended subject to certain conditions;
1.2. the provisions of the Privileges, Immunities and Powers of Parliament Act (“the Act”) in terms of which those proceedings purported to take place.
SCHEME OF THESE SUBMISSIONS
2. In these submissions,
2.1. first we set out the background to the matter;
2.2. we then address (in Part I) each of the three grounds for review that we advance, namely:
2.2.1. the composition and attitude of the Parliamentary Privileges Committee vitiate its decision because they give rise to a reasonable apprehension of bias and interest in the cause, alternatively a violation of the fundamental right of the applicant not to be discriminated against by virtue of his race and political affiliation,
2.2.2. the actions and attitude of Parliament itself vitiate its decision because they give rise to a reasonable apprehension of bias and the breach of the requirements of natural justice, alternatively a violation of the fundamental right of the appellant not to be discriminated against by virtue of his race and political affiliation and
2.2.3. the sentence imposed was grossly unreasonable and disproportionate and amounts to cruel and inhuman punishment as contemplated by section.
2.3. finally (in Part II) we address the applicant’s constitutional challenge to the Act itself. We address this last as a matter of convenience, because it is desirable first to analyse the essential facts of the matter, which in turn immediately give rise to the three review grounds.
3. The applicant was elected as the Member of Parliament for the Chimanimani constituency in the 2000 parliamentary elections. He is a member of the Movement for Democratic Change (MDC), the official opposition in the Parliament of Zimbabwe.
Bennett founding affidavit, p. 5, para 4.1.
4. On 18 May 2004 an incident took place in Parliament. The Attorney-General, a member of Parliament of Zanu (PF), Mr P. Chinamasa, engaged in a verbal attack on the applicant and his ancestors, including accusing them of being criminals. The applicant responded by pushing Mr Chinamasa.
Bennett founding affidavit, p. 11, para 7.1.
5. Thereafter a Committee was set up under the Privileges, Immunities and Powers of Parliament Act Chapter 2:08 (“the Committee”) to look into the incident.
Bennett founding affidavit, p. 12, para 8.
6. On 26 October 2004, a report of the Committee was tabled in Parliament. The Committee found the applicant guilty of contempt of Parliament and the three-person majority of the committee supported a penalty of imprisonment with labour for fifteen months with three months suspended. The remaining two members of the Committee voted against the custodial sentence.
Bennett founding affidavit, p. 13, para 10
Annexure B to Bennett founding affidavit - Report of the Parliamentary Privileges Committee, pp. 40, 42 and 43.
7. On 28 October 2004, Parliament voted along party lines to adopt the majority recommendation of the Parliamentary Privileges Committee.
Bennett founding affidavit, p. 13, para 10.
PART I: THE PROCEEDINGS OF THE 1ST TO 6TH RESPONDENTS ARE INCONSISTENT WITH SECTIONS 15, 18 AND 23 OF THE CONSTITUTION OF ZIMBABWE
8. It is clear that Parliament must at all times act in accordance with the provisions of the Constitution, including when it considers whether one of its members is guilty of contempt. As this Court stated in Mutasa v Makombe 1998 (1) SA 397 (ZS) at 401H:
“Is it open to argument that, in one or other of the respects complained of by the appellant, the privileges and powers enjoyed by Parliament were exercised in conflict with the fundamental rights and freedoms guaranteed by the Constitution? That is the crux of the matter.”
Similarly, this Court has stated, with reference to the Powers, Immunities and Privileges Act (“the PIPP Act”), that:
“When construing the provisions of Chap 10 the Courts of justice cannot ignore any breaches of fundamental rights in order to rule in favour of Parliamentary privilege. To do so would be inconsistent with the provisions of the Constitution.”
Smith v Mutasa and Another NNO 1990 (3) SA 756 (ZS) at 762J-763A.
9. This Court is required to intervene if Parliament, in dealing with an accusation of contempt, violates the rights of one of its members.
“[W]here the Court can and must interfere is where Parliament has improperly exercised that privilege and has acted mala fide or capriciously and in defiance of the constitutionally inherent rights of a Member - such as the right to just administrative action.”
De Lille and Another v Speaker of the National Assembly 1998 (3) SA 430 (C) at para 34 (and see Speaker of the National Assembly v De Lille 1999 (4) SA 863 (SCA) at 868I-869B).
10. The applicant’s case is that when the Committee and Parliament found him guilty and sentenced him, they did so in violation of his constitutional rights. In particular:
10.1. The composition and proceedings of the Committee and Parliament were not in accordance with the principles of natural justice and did not amount to the required fair hearing before an impartial tribunal. This is a violation of section 18(1), (2) and (9) read with section 13(1) and (2)(b) of the Constitution.
10.2. The actions taken against the Applicant constitute discrimination on the grounds of race and political opinion given that no action was taken against other members of Parliament who engaged in misconduct at the same time, and therefore violate section 23(1)(b) and (2) of the Constitution.
10.3. The sentence imposed by the Committee and Parliament constitutes, in the circumstances of the matter, inhuman and degrading punishment and therefore violates section 15(1) of the Constitution.
11. We address each of these submissions in turn.
(1) THE COMPOSITION AND PROCEEDINGS OF THE COMMITTEE AND PARLIAMENT WERE NOT IN ACCORDANCE WITH THE PRINCIPLES OF NATURAL JUSTICE AND DID NOT AMOUNT TO THE REQUIRED FAIR HEARING BEFORE AN IMPARTIAL TRIBUNAL.
The constitutional requirement of a fair procedure in accordance with natural justice
12. The right to a fair hearing in accordance with natural justice is well-entrenched in Zimbabwean law. As this Court has made clear:
“It is settled law that where a statute empowers a public official or body to give a decision which will prejudicially affect an individual in his liberty, property or existing rights, the right to a fair hearing is to be given effect to unless the statute expressly or by implication indicates the contrary.”
Holland and Others v Minister of the Public Service, Labour and Social Welfare, Zimbabwe 1998 (1) SA 389 (ZS) at 393I-394B.
13. This requirement, which exists at common law, is further entrenched by section 18 of the Constitution. This section provides, in relevant part, as follows:
“(1) Subject to the provisions of this Constitution, every person is entitled to the protection of the law.
(2) If any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.
. . .
(9) Subject to the provisions of this Constitution, every person is entitled to be afforded a fair hearing within a reasonable time by an independent and impartial court or other adjudicating authority established by law in the determination of the existence or extent of his civil rights or obligations.”
14. On face value, this section would seem to require that the circumstances of the present case demand that the applicant be accorded a fair hearing.
14.1. Section 22 of the PIPP Act read with the Schedule to the Act makes it clear that the contempt which the applicant has been convicted is a criminal offence. He therefore meets the requirement for facing a “criminal offence” and as such is constitutionally entitled to a “fair hearing” under section 18(2).
14.2. Even if, for some reason, the Applicant did not fall within section 18(2), he would fall within section 18(9) in that the “existence or extent of his civil rights and obligations” is at issue. This Court has already made clear that the term “civil rights and obligations” is “of wide import”, that “its ambit is not easily defined” and that it includes a “prejudicial effect on property and liberty . . . of the aggrieved person”.
Holland (supra) at 392E-H.
Thus the applicant would be constitutionally entitled to a “fair hearing” by virtue of section 18(9) of the Constitution.
15. It must be recognised immediately that Gubbay CJ in Mutasa (supra) suggested that section 18(2) and (9) of the Constitution did not apply when Parliament found a member guilty of contempt. Whether this approach was correct is, with respect, open to significant doubt. However, for purposes of this case, it is not necessary to decide whether Mutasa was correctly decided.
16. This is because Mutasa did not involve the deprivation of liberty – it involved a suspension from Parliament. In contrast, the present case involves a severe deprivation of liberty – a sentence of fifteen months in jail (three months suspended).
17. Because the present case involves the deprivation of liberty, section 18 of the Constitution must be read in the light of the guarantee of individual liberty, which is contained in section 13 of the Constitution. Whatever the correctness of the decision in Mutasa, we submit that any deprivation of liberty may take place only as a consequence of a procedurally fair hearing in accordance with natural justice. The matter must therefore be approached differently to Mutasa. Indeed, in his decision, Gubbay CJ recognised that the circumstances of a particular case of contempt could nevertheless produce a violation of constitutional rights:
“Of course, in Zimbabwe . . . [contempt] jurisdiction must be exercised in a manner not inconsistent with or offensive to the Declaration of Rights in the Constitution. For instance, the courts would not tolerate a situation in which the Speaker decreed that a member guilty of a contempt was to stand before the House chained and gagged to receive his punishment.”
Mutasa at 403D.
18. Moreover, Mutasa is additionally distinguishable on the grounds that the applicant in that matter expressly abandoned his allegations of bias on the part of the committee which enquired into his contempt (see Mutasa at 404A). Had these allegations been persisted in, and found as a fact by the court, the logical corollary would have been that the proceedings were nullified, because bias (or the reasonable perception of bias) in law has that effect (per Corbett CJ in Council of Review, SADF v Monnig 1992 (3) SA 482 (A) at 495B-D). In this regard, moreover, it is inconceivable that the Constitution could countenance the deprivation of liberty through a process which did not meet the requirements of natural justice. By way of comparison, the South African Constitutional Court has held that freedom has two inter-related constitutional aspects:
“the State may not deprive its citizens of liberty for reasons that are not acceptable, nor, when it deprives its citizens of freedom for acceptable reasons, may it do so in a manner which is procedurally unfair.”
De Lange v Smuts NO and Others 1998 (3) SA 785 (CC) at para 18
S v Coetzee and Others 1997 (3) SA 527 (CC) at para 159.
Crucially, this holding of the Constitutional Court was sustained under both the 1993 and 1996 Constitutions, despite the fact that neither section which protected liberty expressly referred to the notion of procedural fairness. The Court described the right to procedural fairness as being “implicit” in the constitutional guarantee of freedom.
“[T]he requirement of 'fairness' or 'due process' or 'natural justice' . . . however one wishes to label it, is implicit in this right.”
Nel v Le Roux NO and Others 1996 (3) SA 562 (CC) at para 12.
See also De Lange (supra) at para 22.
19. An analysis of section 13 of the Zimbabwean Constitution further strengthens this conclusion. Section 13 provides, in relevant part, as follows:
“(1) No person shall be deprived of his personal liberty save as may be authorized by law in any of the cases specified in subsection (2).
(2) The cases referred to in subsection (1) are where a person is deprived of his personal liberty as may be authorized by law-
. . .
(b) in execution of the order of a court punishing him for contempt of that court or of another court or tribunal or in execution of the order of Parliament punishing him for a contempt”
20. Sub-sections (1) and (2) of section 13 thus refer to a deprivation of liberty only being applicable when it is “authorised by law”. It is not “authorised by law” when it is vitiated by bias and thus in law a nullity. To sustain a deprivation of liberty in such circumstances is to flout the principle of legality (or “rule of law” in more traditional terms) which is the linchpin of the constitutional state (Fedsure Life Ass Ltd v Greater Johannesburg Transitional Metropolitan Council 1999 (1) SA 374 (CC) at para ). That government must comply with the “rule of law” is further made clear by section 18(1) of the Constitution which provides:
“Subject to the provisions of this Constitution, every person is entitled to the protection of the law.”
21. Arguments concerning the procedural requirements for a deprivation of liberty and the implications of section 13 were, of course, not considered at all in Mutasa’s case because that case did not raise the deprivation of liberty. We submit that when these issues are considered, it is clear that Parliament was constitutionally required to adopt a fair procedure in accordance with natural justice when it deprived the Applicant of his liberty. Certainly it could not adopt a procedure which in law gives rise to a nullity; that could never be “authorised by law”.
22. We now turn to the requirements that must be met for a hearing to be procedurally fair and in accordance with natural justice.
The requirements that must be met for a hearing to be procedurally fair and in accordance with natural justice
23. This Court has made clear procedural fairness “varies according to context” and that its “breadth must be determined from the specific nature of the proceedings or inquiry in question”. It is submitted that where a deprivation of liberty is being sought, the requirements to be met will be more exacting than in other contexts. In any event, this Court has already set out the minimum requirements for procedural fairness:
“At the very least there are three fundamental requirements of natural justice to which a person directly affected by an impending inquiry is entitled: The first is the right to have notice of the charge or complaint. The second is the right to be heard - to be given the opportunity to adequately state a case in answer to that charge or complaint. And the third, mentioned expressly in s 18(9), is the right to an impartial hearing.”
Holland (supra) at 393D-F (emphasis added.)
24. It is this third requirement, the right to an impartial hearing, on which the applicant primarily relies. In a number of respects, the Committee and Parliament manifestly did not afford the applicant an impartial hearing:
24.1. A majority of the Committee members were from the majority party, meaning that it was biased, or at the very least reasonably perceived as biased against the applicant. A reasonable perception of bias, of course, suffices to invalidate.
24.2. Parliament convicted and sentenced the applicant by voting on party lines, meaning that it was biased against the applicant.
24.3. The majority party was the complainant in this matter and yet controlled the charging, investigating, conviction and sentencing processes.
24.4. The members of the majority party who sentenced and convicted the applicant had a direct and substantial interest in the matter.
25. In each of these respects, the Committee and/or Parliament breached the applicant’s right to a fair hearing.
The composition of the Committee
26. The Committee played a critical role in the determination of the applicant’s guilt and his consequent sentence. Its report formed the basis of Parliament’s decision and its proposals were fully adopted by Parliament.
27. Therefore, in order for Parliament’s decision to comply with requirements of administrative justice, it is not only Parliament that must abide by the principles of natural justice and absence of bias, but also the Committee.
28. This is demonstrated by the case of De Lille (supra) which involved similar factual circumstances. The South African Parliament appointed an ad hoc committee to investigate one of its members, Ms De Lille, for contempt. The committee made recommendations to Parliament, including punishment to be meted out, and Parliament then adopted these recommendations. Ms De Lille challenged the decisions of the ad hoc committee and Parliament.
29. In dealing with this case, the Court was faced with an argument that the ad hoc committee investigating Ms De Lille merely made recommendations to Parliament and therefore did not have to accord comply with the requirement of natural justice. Hlophe J rejected this argument:
“The ad hoc committee's investigation and subsequent recommendations led to a decision seriously affecting individual rights and interests. . . . Lord Loreburn LC quite rightly considered a fair hearing to be 'a duty lying upon everyone who decides anything'. Surely the exercise by a body of a disciplinary power over one of its members is an obvious case in which fairness requires that the rules of natural justice should be complied with. It follows therefore that whatever the source of power that was exercised by the Assembly to suspend the first applicant it had to be done in accordance with the dictates of fairness and natural justice.”
De Lille (supra) at para 15.
See also Re Pergamon Press  3 All ER 535 (CA).
30. The Committee consisted of five members. The applicant alleges that a majority of the Committee were members of ZANU-PF. Similarly, an annexure to the affidavit of the sixth respondent indicates that three of the Committee members were members of ZANU-PF or, at the very least, strong supporters of ZANU-PF.
Bennett Founding Affidavit, p. 13, para 10 and p. 14, para 12.1.
Annexure A to Biti Affidavit, p. 63, para 3.
The response of the first to fourth respondents is a plainly bare denial. This cannot raise a genuine dispute of fact with the applicant’s version.
Mnangagwa Affidavit, p. 52, paras 13 and 15.
31. We submit that the enquiry into the attitude and performance of the Committee must therefore proceed on the basis that a majority of the Committee members were members or strong supporters of ZANU-PF, the applicant’s political opponents.
32. For a hearing to be impartial, the tribunal conducting the hearing must not be biased. The test for bias has been set out by this Court in Bailey v Health Professions Council 1993 (2) ZLR 17 (S). The Court held, relying on the decision in R v Gough  2 All ER 724 (HL), that:
"In that matter, the test for bias was set out with persuasive clarity in the H speech of Lord Goff . . .
'Accordingly, having ascertained the relevant circumstances, the court should ask itself whether, having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the Tribunal in question, B in the sense that he might unfairly regard (or have unfairly regarded) with favour, or disfavour, the case of a party to the issue under consideration by him.'
He stressed that by 'real danger' he meant a real possibility rather than a real probability of bias."
33. In Austin & Another v Chairman, Detainees' Review Tribunal & Another 1988 (1) ZLR 21 (SC) at 45-6, this Court emphasised that the test for bias is an objective one, involving an assessment of how right-minded people would perceive the proceedings in question. It is worth quoting this Court’s dictum in detail:
“When considering whether there was bias it is the impression left upon the detainees by the manner the Tribunal conducted its proceedings that is H important. If right-minded people entertain the likelihood of bias or believe that the Tribunal favoured unfairly one party and not the other, then its A decision should not be sustained. Lord Denning MR said in Metropolitan Properties Co (FGC) Ltd v Lannon & Ors . . .
‘. . . in considering whether D there was a real likelihood of bias, the court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be, E nevertheless, if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand.’”
This approach is followed in Swaziland (Minister of Justice v Sapire 10 June 2002, appeal 49/2001, unrep., at p 9), South Africa (President of the RSA v SARFU 1999 (4) SA 147 (CC) at 177), Lesotho (Sole v Cullinan  1 LRC 550 (CA) at 560-561), and the United Kingdom (Locabail (UK) Ltd v Bayfield Properties Limited  3 LRC 482 (CA)).
34. It is submitted that for a majority of any disciplinary committee to be political opponents of the accused in itself creates significant concerns regarding bias. Where the charges in the disciplinary committee relate to a highly-charged and emotive set of events that grew out of a political dispute, we submit that any right-minded person would conclude that there was a real likelihood of bias against the accused person.
35. This was recognised by the South African High Court in De Lille’s case (supra). In that case, Ms De Lille (an opposition member of Parliament) faced an ad hoc committee where the majority (8 out of 15 members) were from the majority ANC majority party and the Committee Chairman was also from the majority party.
36. Hlophe J (now JP) cited the common law rule of natural justice – the nemo iudex in sua causa rule. He explained that
“This rule requires that an affected party must be heard by an impartial and unbiased tribunal. For purposes of the rule there should not be a reasonable suspicion that the ad hoc committee was biased.”
De Lille (supra) at para 16.
37. On the facts of that case, which are of course strikingly similar to those of the present case, Hlophe J accepted the argument advanced to him that:
“The ad hoc committee was not and could not be an independent and impartial forum . . . it was dominated by the majority party. Its independence or impartiality was significantly compromised.”
De Lille (supra) at para 36.
38. We therefore submit that the composition of the Committee gives rise to a real possibility of actual bias, and at the very least a real possibility of perceived bias. This in itself is sufficient to find that the recommendations of the Committee and consequently also the Parliamentary resolution which adopted these recommendations were adopted in breach of the constitutional requirement that the applicant be given a fair hearing by an impartial tribunal.
39. Further evidence of bias is that a member of the Committee, Chief Mangwende, is stated to have made it clear at the beginning of the Committee’s proceedings that the issue at hand was obvious and that he was at a loss as to why the Committee was to spend hours hearing evidence and submissions. In the words of another committee member, Chief Mangwende’s “mind had already been made up”.
Annexure A to Biti Affidavit, p. 63, para 3(c).
40. It is clear that this prevents the Committee being sufficiently impartial as it means that Chief Mangwende was not open to persuasion on the evidence and submissions as to the applicant’s guilt or the sentence to be given. As Hlophe J held in De Lille’s case (supra):
“No one can fairly decide a case before him if he has already prejudged it. Thus prejudgment of the issues to be decided (which is in a sense prejudice) constitutes bias. The entire proceedings become tainted with bias. The reason is self-evident: ‘Justice must be rooted in confidence; and confidence is destroyed when right-minded people go away thinking: ‘the Judge was biased’.’”
De Lille (supra) at para 17.
41. Apart from bare denials, virtually the only response that the first to fourth respondents have is to claim that the Committee must have been impartial and could not have been biased because it was “unanimous” on the applicant’s guilt.
Mnangagwa Affidavit, p. 51, para 11(b) and p. 52, para 13.
42. We submit that this approach is fatally flawed and is no answer to the applicant’s allegations of a lack of impartiality. This is so for two reasons.
42.1. Firstly, in the context of questions of judicial impartiality, the South African Constitutional Court has held that if one of its 11 members were to incorrectly refuse to recuse himself, that decision could fatally contaminate the ultimate decision of the whole Court.
President of the Republic of South Africa and Others v South African Rugby Football Union and Others 1999 (4) SA 147 (CC) at para 32-3.
It was the same principle that led to a decision of the House of Lords being set aside where one of its five members should have recused himself for having an interest in the decision.
R v Bow Street Metropolitan Stipendiary Magistrate and Others, ex parte Pinochet Ugarte (No 2)  1 All ER 577 (HL).
Crucially, this principle applies irrespective of the degree of unanimity that the multi-judge bench achieves. Therefore, in the present case, where not just one member but a full majority of the Committee was perceived to be biased, this fatally contaminates the decision of the Committee as a whole. This is irrespective of the degree of unanimity that is achieved.
42.2. Secondly, to the extent that the unanimity of the Committee is relevant at all, it must be noted that (at best for the first to fourth respondents) the Committee was unanimous only as to the finding of the applicant’s guilt. The Committee was split with regards to sentence with the three Zanu (PF) members voting in favour of a prison sentence of 15 months and the two MDC members voting in favour against any custodial sentence being imposed.
Annexure B to Bennett Founding Affidavit - Report of the Parliamentary Privileges Committee, pp. 41-2.
Annexure A to Biti Affidavit, pp. 63-65, paras 3-5.
Given this, given the fact that the applicant contends that the biased nature of the Committee affected his sentencing and that this is one of his grounds that the Committee’s decision was unconstitutional, the alleged unanimity on guilt can therefore have no bearing on this application.
43. On the grounds set out above, we therefore submit that the proceedings and recommendations of the Privileges Committee were biased and irregular. They did not provide the applicant with the required impartial tribunal and the applicant’s constitutional right to a fair hearing was accordingly breached. Both the recommendations of the Committee and the of those recommendations by Parliament should be set aside by this Court.
(2) IRREGULARITIES BY PARLIAMENT ITSELF
The manner in which Parliament convicted and sentenced the applicant
44. While the Committee made the recommendations concerning the conviction and sentence of the applicant, it was of course Parliament that had to make the final decision on both issues. Parliament was therefore constitutionally required to afford the applicant a fair hearing in accordance with natural justice. The fact that section 16(4) of the PIPP Act provides that Parliament when Parliament inquires into and punishes contempts it is “sitting as a court” can only heighten the degree to which Parliament must in its procedures, actions and attitudes comply with the requirements of natural justice.
Council of Review, SADF v Monnig 1992 (3) SA 482 (A) at 491C-D).
45. Instead of complying with these requirements, Parliament committed substantial irregularities in dealing with the applicant’s case. In particular, when voting on a motion to adopt the Committee’s recommendation as to the applicant’s guilt and the sentence to be given, the members of Parliament split along party lines. The recommendation was adopted by a vote of 53-42. The 53 members who supported the recommendation all being members of Zanu (PF) while the 42 members who opposed it were all members of the MDC.
Bennett Founding Affidavit, pp. 13-4, para 10.
Hansard, 28th October 2004, columns 990-992.
The first to fourth respondents do not essay even a bare denial that Parliament voted along party lines to convict and sentence the Applicant.
Mnangagwa Affidavit, p. 52, para 14.
46. This in itself suggests that the members of Parliament dealt with the matter as though it was a political decision rather than an administrative or quasi-judicial decision. This means that the political composition of Parliament – the fact that Zanu (PF) had 55% of the members deciding the issue – was determinative of the outcome. This undoubtedly should lead the court to conclude that, to paraphrase the test set out in Bailey’s case (supra), “there was a real danger of bias on the part of the relevant members of the tribunal, in the sense that they might have unfairly regarded with disfavour the case of a party to the issue under consideration by them”.
47. This danger of bias was greatly exacerbated by the fact that the members of Parliament were never instructed:
47.1. that they were sitting as a court;
47.2. nor that they were bound by the principles of natural justice;
47.3. nor that they should individually and independently consider the merits of the matter;
47.4. nor that they should refrain from merely voting along party lines.
Bennett Founding Affidavit, pp. 13-4, para 10 and p. 15, para 12.2-12.3.
The first to fourth respondents’ only response is a bare denial.
Mnangagwa Affidavit, p. 52, para 15.
48. The bulk of the members of Parliament (if not all of them) were therefore completely unaware that they should step outside their party allegiance to individually and independently reach their own view on the merits of the matter.
49. This was exacerbated by the highly politicized nature of:
49.1. the incident in question;
49.2. the comments in Parliament that led to the incident; and
49.3. the actions and recommendations of the Privileges Committee when considering the incident.
50. Under the circumstances, there was undoubtedly a “real possibility” of political bias (the test set out in Bailey (supra) at 22F) in Parliament’s decision. Indeed, in these circumstances, even the more exacting test of a “real probability” of political bias has been met.
51. We submit further that the fact that Parliament made the decision in question, does not change either the grounds for review or the approach to such grounds. As Hlophe J held in De Lille (supra):
“No one has power to act mala fide, Parliament included. The Constitution . . . also does not intend to authorise bias.”
At para 18.
52. For these reasons, Parliament breached the applicant’s constitutional right to a fair hearing.
The control by the majority party over every stage of the proceedings
53. The majority party controlled each stage of the proceedings against the applicant. It was the complainant, it proposed the Committee to investigate the proceedings, it dominated the Committee when it carried out its work and it dominated Parliament when the final decision on the applicant’s guilt and sentence were made.
Bennett Founding Affidavit, p. 16, para 12.5.
54. This in itself violates the requirements of natural justice and is grounds for Parliament’s decision to be set aside. As the court held in De Lille’s case (supra)
“The ANC was the complainant (the aggrieved party); then the prosecutor (through the ad hoc committee which it dominated); and ultimately the judge (through the National Assembly) in its own cause. This violated the rules of natural justice.”
De Lille (supra) at para 18.
55. It should be noted, further, that Parliament could have quite easily and efficiently dealt with the incident in question without breaching the requirements of natural justice. Section 22(1) of the Privileges Act provides:
“The Attorney-General may, if requested to do so by resolution of Parliament but not otherwise, take such steps as are necessary to bring to trial before a court of competent jurisdiction any person who is alleged to have committed-
(a) any act, matter or thing which in this part is declared to be an offence. . .”
56. It was thus open to Parliament to refer the incident involving the applicant to the Attorney-General and request that the Attorney-General prosecute the applicant before a court of competent jurisdiction. This could have been done immediately following the incident or after a Parliamentary Privileges Committee had found that there was some evidence with which to charge the applicant. In either situation, this would have allowed the majority party to avoid acting as complainant, prosecutor and judge in the same matter. It would therefore have resulted in Parliament respecting the requirement of natural justice.
The direct interest of the majority party members in the matter
57. The members of ZANU-PF who convicted and sentenced the applicant had a direct and substantial interest in the decision they made. By preventing the applicant from taking his seat in Parliament, they created a vacancy in his constituency which required a by-election. They could in turn proceed to contest the by-election – in the absence of the applicant who was the people’s chosen representative.
Bennett Founding Affidavit, p. 16, paras 12.4 and 12.6.
The first to fourth respondents’ only response to these allegations is a bare denial.
Mnangagwa Affidavit, p. 52, para 15.
58. Such a direct and substantial interest meant that the applicant did not receive his constitutionally required fair hearing from Parliament.
The actions taken against the applicant constitute discrimination on the grounds of race and political opinion
59. Section 23 of the Constitution provides, in relevant part, as follows:
“(1) Subject to the provisions of this section-
(a) no law shall make any provision that is discriminatory either of itself or in its effect; and
(b) no person shall be treated in a discriminatory manner by any person acting by virtue of any written law or in the performance of the functions of any public office or any public authority.
(2) For the purposes of subsection (1), a law shall be regarded as making a provision that is discriminatory and a person shall be regarded as having been treated in a discriminatory manner if, as a result of that law or treatment, persons of a particular description by race, tribe, place of origin, political opinions, colour, creed or gender are prejudiced-
(a) by being subjected to a condition, restriction or disability to which other persons of another such description are not made subject; or
(b) by the according to persons of another such description of a privilege or advantage which is not accorded to persons of the first-mentioned description;
and the imposition of that condition, restriction or disability or the according of that privilege or advantage is wholly or mainly attributable to the description by race, tribe, place of origin, political opinions, colour or creed or gender of the persons concerned.”
60. This matter involved alleged misconduct by two other members of Parliament – Mr Chinamasa and Mr Mutasa. Mr Chinamasa was involved in verbally attacking the applicant and provoking the scuffle. Mr Mutasa was involved in the scuffle and kicked the applicant on his back during the scuffle. He is alleged to have “boasted” about his actions in this regard.
Bennett Founding Affidavit, p. 11, para 7.1 and pp. 17-8, paras 13-13.2.
61. Despite this, no action was taken against either Mr Chinamasa or Mr Mutasa by Parliament or the Committee. Indeed, they were allowed to remain in Parliament and vote to convict and sentence the applicant.
Bennett Founding Affidavit, p. 17, para 13.
62. The applicant alleges that that this amounts to discrimination based on his being a member of the minority political party – the other two members belong to the majority party. He further alleges that this amounts to discrimination on grounds of race as he is white, while the other two members are black. He supports this by citing Mr Chinamasa’s statement that “he could have forgiven such an incident if a black Member of Parliament . . . had been involved.”
Bennett Founding Affidavit, p. 17, para 13.
63. Despite the extremely serious nature of these allegations, the only response of the first to fourth respondents amounts to a bare denial which does not raise a genuine dispute of fact:
“Save for my taking strong exception to the references to the ruling party when the institution concerned was the Parliament of Zimbabwe, I deny the other allegations.”
Mnangagwa Affidavit, p. 52, para 15.
64. In effect, therefore, the first to fourth respondents have provided:
64.1. No other characterisation of or explanation for the actions of Mr Chinamasa and Mr Mutasa;
64.2. No true denial of the statements attributed to Mr Chinamasa; and
64.3. No explanation for why the Committee and Parliament took severe action against the applicant while taking no action whatsoever against Mr Chinamasa and Mr Mutasa.
65. In the circumstances and on the evidence, we submit that no other conclusion can be reached than that the Committee and Parliament discriminated against the applicant on the grounds of his political opinion and race.
66. We submit that this amounts to the Committee and Parliament violating the applicant’s constitutional rights under section 23(1) and (2).
(3) THE SENTENCE IMPOSED BY THE COMMITTEE AND PARLIAMENT CONSTITUTES INHUMAN AND DEGRADING PUNISHMENT
67. Section 15(1) of the Constitution provides as follows:
“No person shall be subjected to torture or to inhuman or degrading punishment or other such treatment.”
68. This Court has already made clear the reach of the section 15(1) guarantee:
“[Section] 15(1) is not confined to punishments which are in their nature inhuman or degrading. It also extends to punishments which are 'grossly disproportionate'; those which are inhuman or degrading in their disproportionality to the seriousness of the offence, in that no one could possibly have thought that the particular offence would have attracted such a penalty - the punishment being so excessive as to shock or outrage contemporary standards of decency.”
S v Ncube; S v Tshuma; S v Ndhlovu 1988 (2) SA 702 (ZS) at 715G-I.
69. The applicant alleges that that the sentence he was given was grossly unreasonable and disproportionate. He alleges that a custodial prison sentence of 15 months for what is essentially a common assault amounts to inhumane and degrading punishment. He alleges that the sentence is so disproportionate to the conduct complained of that it can only be explained through the failure of Parliament to consider the matter properly.
Bennett Founding Affidavit, pp. 19-20, para 15-15.1.
70. As has already been set out in the Ncube quote above, this Court has recognised that grossly disproportionate sentences violate section 15(1) of the Constitution. We submit that the sentence adopted by the majority of the Committee and by Parliament indeed amounts to such a grossly disproportionate sentence.
71. It is necessary to begin by understanding the basis on which the Committee and Parliament ought to have come to their decision on sentence.
72. In S v Musa 1997 (2) ZLR 149 (HC), the High Court considered what the appropriate approach is to determining punishment for contempt of court. The court held that:
"The most important function of the imposition of punishment in this case is to enforce the court's authority. There is no room whatsoever for any notion of retribution.”
Musa (supra) at 157A-B (emphasis added).
73. The High Court then held that the punishment in the case in question was grossly excessive:
“[T]he 60 day committal was in my view grossly excessive. It could not have been perceived by the accused or by others in the courtroom as being other than a retributive punishment. Clearly, the court's dignity or that of the presiding magistrate was not enhanced, let alone preserved, by an apparently overreactive drive to punish the contemptor. A fine or a committal of, say, 7 days would have been more appropriate if the committal was warranted.”
Musa (supra) at157D-E.
74. In S v Buka 1995 (2) ZLR 130 (SC), this Court stressed that punishment had to be fair with regard to the particular offender being sentenced:
“What is to be guarded against is such an excessive devotion to the cause of deterrence as may so obscure other relevant considerations as to lead to a punishment which is disparate to the offender's deserts. I cannot conceive of any principle which can justify, in my view, for the sake of deterrence and public indignation, the imposition of a sentence grossly in excess of what, having regard to the crime and to the degree of the offender's moral reprehensibility, would be a fair and just punishment.”
75. The High Court has recognised that if an act took place in the heat of passion and was occasioned by provocation, this should be a mitigating factor taken into account in determining sentence.
S v Sibanda 1984 (1) ZLR 13 (HC) at 15D.
76. We submit that the sentence imposed is grossly disproportionate in at least four respects.
77. Firstly, in the present case, the applicant was convicted of, essentially, common assault. In most circumstances, a prison term of 15 months with labour would be grossly excessive for such a crime. Indeed the severity of the sentence strongly suggests that it was retributive – indeed, vindictive - in nature. As is set out in the Musa decision (supra), this is impermissible.
78. We must of course recognise that common assault within the walls of Parliament is of course more serious that outside Parliament. Parliament’s dignity must be protected. However it ought to have been borne in mind by the sentencing bodies that, to paraphrase the Musa dicta (supra), “Parliament’s dignity is not enhanced, let alone preserved, by an apparently overreactive drive to punish the contemptor”.
79. Secondly, the sentence given appears to take no account whatsoever of the fact that the applicant acted in the heat of the moment and in response to severe provocation. As Sibanda’s case (supra) demonstrates, these issues should have been taken into consideration in determining an appropriate sentence.
80. Thirdly, the sentence given to the applicant exceeds the maximum allowable sentence for:
80.1. A member voting upon or taking part in a discussion in which he has a direct pecuniary interest (section 17(1) of the Privileges Act); and
80.2. A member who accepts a fee, compensation or reward for the promotion of or opposition to any Bill or matter before Parliament (section 18 of the Privileges Act).
81. In both cases, which involve potential corruption and the consequent undermining of substantive Parliamentary processes and power, the maximum prison sentence is one year. We submit that a simple assault in the heat of the moment cannot be compared to such pre-meditated acts which have a far greater effect on Parliament’s dignity and power.
82. Fourthly, the imprisonment of the applicant did not only result in his loss of freedom. It also resulted in the members of his constituency losing their lawfully and democratically elected representative in Parliament. Imprisoning a member of Parliament for contempt is in conflict with the principles of representative democracy because it is a punishment which is calculated to penalise not only the member in contempt, but also his or her party and the members of the electorate who voted for the member and who are entitled to be represented.
83. The patent inappropriateness of such a sentence is exacerbated when the sentence is determined by the majority party, which can, by imprisoning the member:
83.1. Remove an opposing member of Parliament from his rightful place in Parliament; and
83.2. Create a vacancy in Parliament which could result in the majority party increasing its majority in Parliament if a by-election is held.
84. As Hlophe J held in De Lille’s case (supra):
“It can never be reasonably justifiable in a democratic society to impose such suspension which will deprive innocent members of the electorate of their representation in Parliament when any such punitive purpose served by the suspension could equally be served by other punishments which do not compromise democratic representation”.
De Lille (supra) at para 38.
85. It should be noted that Hlophe J was in that case referring to a temporary suspension from Parliament, which he held could not be justified. In the present case, the penalty is of course imprisonment for a year, resulting in a far more severe impact on the members of the applicant’s constituency.
86. We submit that the sentence given to the applicant is grossly excessive in the four respects set out above. It is so grossly excessive that it leads to the probable conclusion that the Committee and Parliament committed a gross irregularity in that:
86.1. They were biased against the applicant; and/or
86.2. They were influenced by their interest in the matter; and/or
86.3. The members did not independently exercise their minds as to the appropriateness of the sentence; and/or
86.4. They failed to take any account of the mitigating factors presented by the applicant.
87. We therefore submit that the sentence given to the applicant was grossly disproportionate to the offence committed. It therefore violates the applicant’s rights not to be subjected to inhuman or degrading punishment.
PART II: SECTION 16 OF THE PIPP IS IN ANY EVENT UNCONSTITUTIONAL
88. In Chairman, Public Services Commission v Zimbabwe Teachers' Association 1997 (1) SA 209 (ZS) this Court stated the following at 218J-219A:
“Zimbabwe, unlike Great Britain, is not a parliamentary democracy. It is a constitutional democracy. The centre-piece of our democracy is not a sovereign parliament but a supreme law (the Constitution).”
89. One of the central features of the Zimbabwean Constitution is a separation of the powers of the judiciary from those of the legislature and the executive and a reservation of judicial functions to the judiciary, independent from legislative or executive control.
89.1. In terms of section 79(1) of the Constitution, the judicial authority of Zimbabwe vests in this Court, the High Court and subordinate courts established under an Act of Parliament.
89.2. Section 79B of the Constitution provides a general guarantee of judicial independence. Certain details relating to independence, are addressed specifically in Chapter VIII of the Constitution. Thus:
89.2.1. Section 84 provides for the appointment of judges by a Judicial Service Commission, the composition of which is governed by section 90.
89.2.2. Sections 86 and 87 ensure that judges will have security of tenure.
89.2.3. Section 88 protects judges from reductions in their salaries and allowances.
89.3. Section 81(4) ensures that jurisdiction in criminal matters is reserved to the High Court, the Supreme Court and other adjudicating authorities exercising such jurisdiction when the Constitution came into effect.
90. The provisions of Chapter VIII of the Constitution and the principle of separation of powers of the judiciary from those of the legislature or executive must be reconciled with
90.1. section 49 of the Constitution which regulates parliamentary privilege, and
90.2. section 13(2)(b) of the Constitution which contemplates and authorises the limitation of liberty by contempt orders of Parliament.
91. In Mutasa at 403B-C this Court commented on the contempt jurisdiction of Parliament in the following terms:
“The power to regulate its internal proceedings is a traditional and acknowledged privilege enjoyed by Parliament. As Erskine May Parliamentary Practice 21st ed at 154 puts it:
'The courts have recognised the need for an exclusive Parliamentary jurisdiction, as a necessary bulwark of the dignity and efficiency of either House.'”
92. It is submitted that this passage from Mutasa is the key to reconciling the provisions of Chapter VIII of the Constitution dealing with judicial power and the separation of that power from the power of Parliament with those of sections 49 and 13(2)(b) of the Constitution.
92.1. The Constitution recognises a contempt jurisdiction vesting in Parliament, but for the confined purpose of enabling Parliament to regulate its own internal proceedings.
92.2. Parliament undoubtedly has to be able to protect itself against disturbance and obstruction of its proceedings. Section 49 accordingly implies protective powers which may include a power to eject a member who disrupts or obstructs proceedings or even to imprison a member to coerce his or her compliance with rulings relating to the internal proceedings of Parliament.
92.3. To that extent, the existence of a parliamentary contempt jurisdiction does not violate the constitutional separation of powers.
92.4. However, neither section 49 nor section 13(2)(b) authorise a punitive power of imprisonment for past contempts unrelated to any coercive purpose, because such a power is not necessary for the proper performance of the functions of Parliament.
92.5. Accordingly, if any Act of Parliament purports to vest in Parliament a contempt jurisdiction that goes beyond the constitutionally recognised protective purpose, it will unconstitutionally violate the requirement of a separation of powers between judiciary and legislature and will, accordingly be invalid.
93. In this regard, it is significant that the punitive (as opposed to protective) powers exercised of the House of Commons in England as part of its contempt jurisdiction are a peculiar product of its history.
Erskine May’s Treatise on The Law, Privileges, Proceedings and Usage of Parliament, 21st ed, 69 and 82;
O Hood Phillips’ Constitutional and Administrative Law, 7th ed 244
These punitive powers are a legacy of the ancient judicial role of the English Parliament as High Court of Parliament. Erskine May describes it thus:
“The power to punish for contempt has been judicially considered to be inherent in each House of Parliament not as a necessary incident of the authority and functions of a legislature (as might be argued in respect of certain privileges) but by virtue of their descent from the undivided High Court of Parliament and in right of the lex et consuetudo parliamenti. In this, the position of the UK Parliament differs from that of independent Commonwealth or colonial legislatures.”
Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament, 21st ed 69-70
Hood Phillips makes the same point as follows:
“The power to punish for contempt (as distinct from the ejection of persons who interrupt the proceedings) which has been exercised at least since the middle of the sixteenth century, is a judicial rather have (sic, than) a legislative power and not necessary to enable a legislature to function. The power is inherent in the Houses of the British Parliament for the historical reason that they are part of the High Court of Parliament and have been regarded as superior courts.”
O Hood Phillips’ Constitutional and Administrative Law 7th ed 244
94. Accordingly, the Privy Council held in Kielley v Carson that, whilst the English Houses of Parliament had the power to punish past misconduct, it was not one which was necessary for the proper functioning of a representative legislature. The case concerned the question whether the house of assembly of Newfoundland had punitive powers. The Privy Council held that it did not. Colonial legislatures enjoyed only such inherent powers as were necessary for the proper performance of their functions. Protective powers were necessary for this purpose, but punitive powers not:
“Their Lordships see no reason to think that in the principle of the common law, any other powers are given (colonial legislatures) than such as are necessary to the existence of such a body, and the proper exercise of the functions which it is intended to execute. These powers are granted by the very act of its establishment .... In conformity to this principle we feel no doubt that such an assembly has the right of protecting itself from all impediments to the due course of its proceedings. To the full extent of every measure which it may be really necessary to adopt, to secure the free exercise of their legislative functions, they are justified in acting by the principle of common law. But the power of punishing anyone for past misconduct as a contempt of its authority, and adjudicating upon the fact of such contempt, and the measure of punishment as a judicial body, irresponsible to the party accused, whatever the real facts may be, is of a very different character, and by no means essentially necessary for the exercise of its functions by a local legislature, whether representative or not. All these functions may be well performed without this extraordinary power, and with the aid of the ordinary tribunals to investigate and punish contemptuous insult and interruptions ....
It is said, however, that this power belongs to the House of Commons in England; and this, it is contended, affords an authority for holding that it belongs as a legal incident, by the common law, to an assembly with analogous functions. But the reason why the House of Commons has this power, is not because it is a representative body with legislative functions, but by virtue of ancient usage and prescription; the lex et consuetudo parliamenti, which forms part of the common law of the land, and according to which the High Court of Parliament, before its division and the Houses of Lords and Commons since, are invested with many peculiar privileges, that of punishing for contempt being one.”
Kielley v Carson  13 ER 255 (PC)
95. The Canadian Supreme Court followed Kielley v Carson in Landers v Woodworth where Ritchie said:
“I think a series of authorities, binding on this court, clearly establish that the House of Assembly of Nova Scotia has no power to punish for any offence not an immediate obstruction to the due course of its proceedings and the proper exercise of its functions, such power not being an essential attribute, nor essentially necessary, for the exercise of its functions by a local legislature, and not belonging to it as a necessary or legal incident ....”
Landers v Woodworth (1878) 2 SCR 158 (SC) at 201-2
The Canadian courts have consistently followed this approach. McLachlin J conveniently collected and summarised the authorities in her judgment in the New Brunswick Broadcasting case.
New Brunswick Broadcasting v Nova Scotia (1993) 13 CRR (2d) 1 (SC) 14-16
96. For present purposes, the importance of this line of authority lies, not in what it says about the inherent powers of representative legislatures, but in the basis upon which it does so. An elected legislature has to have protective powers to defend itself against disruption and obstruction of its proceedings. But punitive powers are not necessary for the proper performance of its functions. This is why Chapter VIII of the Constitution can best be reconciled with sections 49 and 13(2)(b) by recognising that a protective parliamentary contempt jurisdiction is consistent with the Constitutional separation of powers but a punitive parliamentary jurisdiction is not.
See Speaker of the National Assembly v De Lille 1999 (4) SA 863 (SCA) at para 17
97. Such an approach is necessary, moreover, to reconcile sections 49 and 13(2)(b) with Chapter V of the Constitution which governs Parliament:
97.1. Section 38 prescribes the composition of Parliament and seeks to achieve a fine balance between
97.1.1. members elected from the voters roll to represent one hundred and twenty common roll constituencies;
97.1.2. eight Provincial Governors appointed by the President;
97.1.3. ten chiefs elected in accordance with the Electoral Law; and
97.1.4. twelve members appointed by the President.
97.2. Section 41 prescribes the circumstances in which the seat of a member will become vacant.
97.3. Section 42 provides for members to lose their seats if they are convicted of an offence and sentenced to a term of imprisonment of not less than six months.
97.4. Section 43 allows Parliament, by resolution of two-thirds of its members, to suspend a member for a period not exceeding six months if he is found guilty of an offence but receives a sentence less than the six months’ imprisonment contemplated by section 42.
98. The purpose of all of these provisions is clear: Members of Parliament are elected to represent their constituents and to give effect to the democratic system upon which the Constitution is founded and which the Constitution in turn guarantees. If the majority party in Parliament can use its control over Parliament effectively to remove opposition members from Parliament by imposing purely punitive sentences on them for contempt of Parliament, this democratic purpose which lies at the heart of the Constitution will be frustrated:
“A man is not seated because he is a Socialist or a Communist.
Another is not seated because in his district members of a minority are systematically excluded from voting.
Another is not seated because he has spoken out in opposition to the war in Vietnam.
The possible list is long. Some cases will have the racist overtones of the present one.
Others may reflect religious or ideological clashes.
At the root of all these cases, however, is the basic integrity of the electoral process. Today we proclaim the constitutional principle of “one man, one vote.” When that principle is followed and the electors choose a person who is repulsive to the Establishment in Congress, by what constitutional authority can that group of electors be disenfranchised?”
Powell v McCormack 395 US 486 at 553
See also De Lille v Speaker of the National Assembly 1998 (3) SA 430 (C) at para 27
99. It is thus fundamentally inconsistent with the requirements of representative democracy to vest in an assembly controlled by a single majority party, the discretionary power to suspend members of other parties. Representative democracy demands that the composition of Parliament at any given time, be determined by the outcome of a democratic election, and not by the whims of the majority party in Parliament. The principles of representative democracy that underlie Chapter V of the Constitution, accordingly confer on the constituents represented in Parliament and their representatives, a constitutional right to participate in the proceedings of Parliament through those representatives. This right cannot be limited by the majority party through the exercise of a punitive power.
100. Section 16 of the PIPP Act states the following
“16 Jurisdiction of Parliament
(1) It is declared for the avoidance of doubt that Parliament has all such powers and jurisdiction as may be necessary for inquiring into, judging and pronouncing upon the commission of any act, matter or thing in this Part declared to be an offence without derogation from the powers and jurisdiction exercisable by Parliament by virtue of paragraph (b) of section three with respect to the commission of any act, matter or thing, whether or not in this Part declared to be an offence, which is or may be adjudged by Parliament to be a contempt.
(2) Parliament shall have power to award and execute the punishments provided by this Part for the commission of any act, matter or thing which in this Part is declared to be an offence.
(3) Subsection (2) shall not be construed as precluding Parliament from awarding and executing any punishment for the commission of any act, matter or thing referred to in that subsection which Parliament has power and jurisdiction to award and execute by virtue of paragraph (b) of section three in addition to or instead of any punishment provided by this Part for the commission of that act, matter or thing.
(4) Parliament sitting as a court shall have all such rights and privileges of a court of record as may be necessary for the purpose of summarily inquiring into and punishing the commission of any act, matter or thing which in this Part is declared to be an offence.”
101. Section 16 purports to vest Parliament with a power which is clearly judicial in nature and which goes beyond the protective powers contemplated by sections 49 and 13(2)(b) of the Constitution. As such it violates the constitutional principle of the separation of powers between legislature and judiciary and is accordingly invalid.
102. For the reasons set out above, the applicant asks for an order in the following terms:
102.1. declaring the proceedings of the first to sixth respondents to be inconsistent with the Constitution of Zimbabwe and invalid,
102.2. declaring Section 16 of the Privileges, Immunities and Powers of parliament Act Chapter 2:08 to be inconsistent with the Constitution and invalid,
102.3. directing the first, second, third and fourth respondents to pay the applicant’s costs of suit.
JEREMY GAUNTLETT SC
Counsel for Applicant
Cape Town and Johannesburg
16 May 2005
· Roy Bennett (the Applicant) was elected as the Member of Parliament for Chimanimani Constituency in the 2000 Parliamentary elections. He is a member of the Movement for Democratic Change (MDC), the official opposition in the Parliament of Zimbabwe.
· On 18 May 2004 an incident took place in Parliament. The Attorney General, a Member of Parliament of Zanu (PF), Mr P Chinamasa, engaged in a verbal attack on the Applicant and his ancestors, including accusing them of being criminals. The Applicant responded by pushing Mr Chinamasa.
· Thereafter a Committee was set up under the Privileges, Immunities and Powers of Parliament Act, Chapter 2 : 08 to look into the incident.
· On 26 October 2004, a report of the Committee was tabled in Parliament. The Committee found the Applicant guilty of contempt of Parliament and the three-person majority of the Committee supported a penalty of imprisonment with labour for 15 months with 3 months suspended. The remaining 2 members of the Committee voted against the imprisonment of the Applicant.
· On 28 October 2004 Parliament voted along party lines to adopt the majority recommendation of the Parliamentary Privileges Committee.
· The Applicant is currently serving his sentence of imprisonment.
2. Main Issues
The matter concerns the constitutional validity of :
· the proceedings in terms of which the Applicant was convicted by Parliament; and
· the provisions of the Privileges Immunities and Powers of Parliament Act in terms of which those proceedings purported to take place.
3. Submissions to be made by Applicant’s counsel on his behalf
The submissions are made in 2 parts.
Part 1 of Counsel’s submissions will be to the effect that the proceedings of the first to sixth respondents are inconsistent with Section 15, 18 and 23 of the Constitution of Zimbabwe. Three grounds for review will be raised. Part 2 of the submission will address the Applicant’s constitutional challenge to the Privileges, Immunities and Powers of Parliament Act itself.
The Applicant’s case is that when the Committee and Parliament found him guilty and sentenced him, they did so in violation of his constitutional rights. In particular:
(A) The composition and proceedings of the Committee and Parliament were not in accordance with the principles of natural justice and did not amount to the required fair hearing before an impartial tribunal. This is a violation of Section 18(1), (2) and (9) read with Section 13(1) and (2)(b) of the Constitution.
In its submission regarding the composition and proceedings of the Committee and Parliament, Applicant’s counsel will state that it is clear that Parliament was constitutionally required to adopt a fair procedure in accordance with natural justice when it deprived the Applicant of his liberty (Section 18 of the Constitution of Zimbabwe). Counsel will argue that the Committee and Parliament manifestly did not afford the Applicant an impartial hearing for the following reasons :
· the majority of the Committee members were from the majority party, meaning that it was biased, or reasonably perceived as biased against the Applicant.
· Parliament convicted and sentenced the Applicant by voting on party lines, meaning that it was biased against the Applicant.
· The majority party was the complainant in this matter and yet controlled the charging, investigating, conviction and sentencing processes.
· The members of the majority party who sentenced and convicted the Applicant had a direct and substantial interest in the matter.
It will therefore be submitted that the proceedings and recommendations of both the Committee and Parliament were biased and irregular.
(B) The actions taken against the Applicant constitute discrimination on the grounds of race and political opinion given that no action was taken against other Members of Parliament who engaged in misconduct at the same time (Messrs Chinamasa and Mutasa), and therefore violates Section 23(1)(b) and (2) of the Constitution.
In its submission regarding irregularities made by Parliament itself, Applicant’s counsel will argue that Parliament committed substantial irregularities in dealing with the Applicant’s case. In particular, when voting on a motion to adopt the Committee’s recommendation as to the Applicant’s guilt and the sentence to be given, the Members of Parliament, split along party lines. The recommendation was adopted by a vote of 53 – 42. The 53 members who supported the recommendation all being members of Zanu (PF) while the 42 members opposed it were all members of MDC. Additionally, the Members of Parliament were never instructed :
· That they were sitting as a Court;
· That they were bound by the principles of natural justice;
· That they should individually and independently consider the merits of the matter;
· That they should refrain from merely voting along party lines.
Secondly, it will be argued that the majority party controlled each stage of the proceedings against the Applicant. It was the complainant, it proposed the Committee to investigate the proceedings, it dominated the Committee when it carried out its work and it dominated Parliament when the final decision on the Applicants guilt and sentence were made. (It will also be pointed out that this matter could quite easily and efficiently have been dealt with, without breaching the requirements of natural justice, by referring the incident involving the Applicant to the Attorney General and requesting that the Attorney General prosecute the Applicant before a Court of competent jurisdiction.)
Thirdly, the members of Zanu (PF) who convicted and sentenced the Applicant had a direct and substantial interest in the decision they made. By preventing the Applicant from taking his seat in Parliament, they created a vacancy in his constituency which required a by-election. Furthermore, the alleged misconduct of two other Members of Parliament, Mr Chinamasa and Mr Mutasa was not investigated, no action was taken against these individuals and they were allowed to remain in Parliament and vote to convict and sentence the Applicant. This amounts to discrimination based on his being a member of the minority political party and on the grounds of race - the Applicant is white, the other two members involved are black. This infringes against Section 23 of the Constitution.
(C) The sentence imposed by the Committee and Parliament constitutes, in the circumstances of the matter, inhuman and degrading punishment and therefore violates Section 15(1) of the Constitution.
The third submission will be that the sentence imposed by the Committee in Parliament constitutes inhuman and degrading punishment. Applicant’s Counsel will submit that the sentence imposed is grossly disproportionate in at least 4 respects:
· The Applicant was convicted of, essentially, common assault. A prison term of 15 months with labour is grossly excessive for such a crime. The severity of the sentence strongly suggests that it was retributive, indeed vindictive in nature.
· The sentence takes no account whatsoever of the fact that the Applicant acted in the heat of the moment and in response to severe provocation.
· The sentence given to the Applicant exceeds the maximum allowable sentence.
· The imprisonment of the Applicant did not only result in his loss of freedom, but also resulted in the members of his constituency losing their lawfully and democratically elected representative in Parliament.
This is an infringement of Section 15 of the Constitution of Zimbabwe which provides that “no person shall be subjected to torture or to inhuman or degrading punishment or other such treatment”.
Part 2 of Applicant’s submission will address the Applicant’s constitutional challenge to the Privileges, Immunities and Powers of Parliament Act itself. It will be argued that Section 16 of the Privileges, Immunities and Powers of Parliament Act violates the constitutional principle of separation of powers between legislature and judiciary and is accordingly invalid.
4. Relief sought
The relief sought is the following:
(a) That the proceedings of the first to sixth respondents (Emmerson Dambudzo Mnangagwa, Paul Mangwana, Joyce Mujuru, Chief Mangwende, Welshman Ncube and Tendai Biti) are inconsistent with the Constitution of Zimbabwe and therefore invalid.
(b) Declaring Section 16 of the Privileges, Immunities and Powers of Parliament Act Chapter 2:08 to be inconsistent with the Constitution of Zimbabwe and invalid.
(c) Directing that the first, second, third and fourth respondents (Mnangagwa, Mangwana, Mujuru, Mangwende) pay the Applicant’s cost of suit.
(d) Should the relief sought by Applicant’s Counsel be granted, this will necessitate Bennett being released (assuming the Government of Zimbabwe abides the decision of its own Supreme Court).