BY SILAS NKALA
BULAWAYO lawyer Nqobani Sithole has taken President Emmerson Mnangagwa, Speaker of the National Assembly Jacob Mudenda, Senate President Marble Chinomona and Justice, Legal and Parliamentary Affairs minister Ziyambi Ziyambi to court contesting the legality of the restoration of Constitutional Amendment No 1 (HB 1A. 2017) which lapsed in July 2018.
Sithole filed the application at the Bulawayo High Court on April 22 citing Mnangagwa, Mudenda, Ziyambi and Chinomona as respondents.
In his founding affidavit, Sithole submitted that he was filing the application in terms of Section 167 (2) (d) of the Constitution as read with Rule 27 of the Constitutional Court Rule 2016 for declaratory orders and consequential relief for the court to declare that parliament through Senate failed to exercise its legislative authority under section 131 (2) of the constitution of Zimbabwe Amendment No. 20 Act 2013 in accordance with the Constitution by passing a motion to restore the constitution amendment No.1) H.B 1A, 2017 to the order paper on March 24 2021 when the said Constitutional Bill had lapsed on July 29 2018 by operation of section 147 of the Constitution.
He said it must be declared that parliament through the senate failed to exercise legislative authority under section 131 (2) of the Constitution.
Sithole further said it must be declared that all processes from the restoration and passage of Constitution Amendment No.1 (H.B 1A, 2017 by the senate on March 24 2021 and on April 6 2021 are of no force or effect.
He said the law requires the respondents not to violate any provision of the Constitution as section 119 of the same imposes an obligation on parliament to protect the Constitution and promote democratic governance.
His application arose in that during the eighth parliament, Ziyambi tabled a Bill Amendment No.1 (H.B. 1A, 2017) the provision of which sought to amend several sections of the constitution including the manner in which the appointment of judicial officers was to be done.
“On July 25, 2017 the Bill was debated and passed in the House of Assembly of the eighth parliament as required by section 328 of the constitution. The bill received the required affirmation two thirds vote,” Sithole submitted.
“In terms of the Constitution, the same affirmation was required in the senate of the Eighth parliament to pass the same Bill and apparently on August 1, 2017 the senate purported to have achieved this threshold.”
He said the vote in the senate ended before the court when the validity of the vote was challenged on the basis that the two-thirds threshold had not been attained.
He added that two court applications were filed by legislators Innocent Gonese and Jessie Majome and were subsequently consolidated.
He said the life of the eighth parliament lasted until July 29, 2018 and all proceedings pending at the time of dissolution of the eighth parliament were terminated and every Bill, motion, petition and other business of that parliament lapsed on dissolution.
He said it was illegal that on March 24, 2021 parliament through the senate passed the same motion restoring the constitutional Amendment No. 1 (Bill H.B 1A, 2017) and the same as done on April 6, 2021.
Respondents are yet to file opposition papers in the matter.