Legal avenues remain available to challenge the Constitution Amendment Bill No. 3 (CAB3) even if it is passed by Parliament, with MDC leader and constitutional lawyer Douglas Mwonzora noting that Zimbabwe’s Constitutional Court will face a difficult task justifying a ruling in favour of the controversial legislation.
The proposed amendment bill continues to divide opinion over both its constitutional validity and the manner in which Parliament should handle one of the most consequential constitutional amendments proposed since the adoption of Zimbabwe’s 2013 Constitution.
In an interview with CITE, Mwonzora said the CAB3 can still be challenged in court once the parliamentary process is complete,stating that proposed amendments violate constitutional provisions relating to voting rights and term limits.
His comments come as the debate over CAB3 continues in Parliament amid opposition from ordinary citizens, some politicians, and constitutional experts, who argue that aspects of the bill require a national referendum.
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Asked whether there would still be legal remedies available should the bill sail through Parliament, Mwonzora was emphatic.
“Yes, definitely, definitely there is,” he said.
He explained that previous attempts to challenge the bill had been hampered by the Constitutional Court’s reliance on the “ripeness principle,” a legal doctrine which holds that courts should not intervene before a dispute has fully materialised.
“The Constitutional Court, in order to frustrate people from approaching it, has been using what is called the ripeness principle,” said Mwonzora.
“The ripeness principle is that the matter is not yet ready for court.”
According to Mwonzora, when earlier court challenges were brought against the proposed amendments, judges questioned whether Parliament would ultimately pass the bill in its existing form.
“I think when the other court cases were argued before the Constitutional Court, the Constitutional Court was saying, ‘How do you know that Parliament is going to be irrational? How do you know that Parliament is not going to change this clause as it stands?’” he said.
“So you have to wait until Parliament becomes irrational.”
He argued once Parliament has completed its deliberations and approved the bill, any challenge based on the final text would be ripe for judicial determination.
“It has to be taken to the Constitutional Court,” said Mwonzora.
“I think that the Constitutional Court will rule in favour of a referendum because it has already ruled in favour of a referendum when it comes to extension of the presidential term limit.”
Mwonzora said he struggles to see how the country’s highest court could reach a different conclusion when confronted with arguments that CAB3 effectively alters Zimbabweans’ voting rights.
“I am yet to see how else a Constitutional Court can rule if we present it with an argument that there are people who have been voting for president over the years,” he said.
“They have no interest in being in Parliament, but they are now being told that you can no longer vote for president. Has their right to vote not been affected? Has their right to vote not been amended?”
He maintained that the issue is straightforward from a constitutional perspective.
“I’m yet to see the Constitutional Court reason in any other way. There is absolutely no reason. It’s a clear-cut case,” he said.
Meanwhile, Mwonzora said a secret ballot was necessary for Members of Parliament to vote on the bill citing the current political environment that makes it difficult for legislators to freely express their views.
He said incidents of violence and intimidation against critics of CAB3 have created a climate of fear that could influence how MPs vote if their positions are publicly known.
“A secret ballot is necessary because as we were going towards the outreach and during the outreach and even post-outreach, we witnessed violence meted against people who were anti-CAB3,” he said.
Mwonzora cited several examples, including assaults on constitutional law expert Professor Lovemore Mhaduku and lawyer Douglas Coltart, whose assailants have not been brought to book.
He also pointed to alleged harassment of MDC members and journalists in Bulawayo, as well as the continued detention of some MDC youths.
“The MDC women in Bulawayo on two occasions, including journalists in Bulawayo, were harassed and nothing happened to the assailants. The MDC youths are languishing in prison right now,” he said.
According to Mwonzora, MPs are fully aware of these incidents and may fear repercussions if they openly oppose the bill.
“All this is in the view of Members of Parliament who are going to vote,” he said.
“These Members of Parliament know that there is a group of powerful people or connected people that can mete out violence on people who don’t support CAB3 and those people will go scot-free.”
As a result, he argued, legislators may feel pressured if voting is conducted publicly.
“So when they vote, they will be afraid if they are asked to vote by show of hands or by popular acclamation, which is what the Speaker is driving towards,” he said.
Mwonzora criticised proposals that would allow voting through voice acclamation, where lawmakers indicate support or opposition by shouting “aye” or “nay”.
“By popular acclamation, they say, ‘those who agree say aye, then those who don’t agree say nay, I think the ayes have it.’ They want to judge by noise,” he said.
He argued that a secret ballot would better protect MPs from external pressure and ensure that the outcome reflects their genuine views.
“If it is by secret ballot then we know that it is the free expression of the views of the Members of Parliament, whether it is in our favour or not, it doesn’t matter, as long as the Members of Parliament are voting by their conscience,” said Mwonzora.
“We still think that they should vote by secret ballot.”
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