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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.
ENDS
Submitted by Sokwanele (Zimbabwe)
Website: www.sokwanele.com
IN THE
SUPREME COURT OF ZIMBABWE
Case No: SC 16/05
In the matter
between:
ROY LESLIE
BENNETT
Applicant
and
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
______________________________________________________________________
INTRODUCTION
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.
BACKGROUND
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”
(emphasis added).
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 [58]). 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 [1970] 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 [1993] 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."
(at 22D-F)
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 [2004] 1 LRC 550 (CA) at 560-561), and the United Kingdom
(Locabail (UK) Ltd v Bayfield Properties Limited [2000] 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)
[1999] 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.”
(at 136D-E).
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
[1842] 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.
CONCLUSION
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
MATTHEW
CHASKALSON
Counsel for
Applicant
Cape Town and
Johannesburg
16 May
2005
BRIEF
SYNOPSIS OF ISSUES, ARGUMENT
AND
RELIEF BEING SOUGHT BY
APPLICANT’S
COUNSEL IN
CASE
No. SC 16/05
IN
SUPREME COURT OF ZIMBABWE
TO
BE HEARD ON 26 MAY 2005
1. Background
· 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.
Part 1
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
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).