Parliament has denied claims that it failed to fulfill its constitutional obligation after the Nationalists Alliance Party accused it of failing to investigate the gazetted election nomination fees.
NAP leader, Divine Mhambi-Hove, alleged the Parliamentary Legal Committee (PLC) failed to examine Statutory Instrument (SI) 144 of 2022 on the Electoral (Nomination of Candidates) (Amendment) Regulations, 2022 (No.1), adding that Parliament also failed to fulfill Section 152 (3) of the Constitution, which is to examine every SI published in the gazette.
Parliament, on the other hand, claimed this matter was wrongly brought to the ConCourt because the Constitution places the obligation of assessing every SI published in the gazette on the PLC as a separate body, rather than Parliament.
This comes after the Zimbabwe Electoral Commission (ZEC) increased presidential nomination fees from US$1 000 to US$20 000 in SI 144 in August.
Nomination fees for National Assembly and Senate candidates also went up from US$50 to US$1 000.
Speaker of the National Assembly, Jacob Mudenda, responded in a notice of opposition received at the ConCourt on April 20, 2023, that the constitutional provision relied on by Mhambi-Hove places the obligation of examining SIs on the PLC, which must then report to Parliament or the Vice President, Minister of authority, whether it considers any provision in the SI to be in violation of the constitution.
“The PLC is not Parliament as contemplated by Section 167 (2)(d) of the Constitution – hence the applicant has no causa and is therefore not properly before this Honourable Court,” Mudenda said.
According to Mudenda, Mhambi-Hove’s application seems to impugn the conduct of Parliaments through the PLC and conflates another functionary with Parliament obfuscating the exact conduct that the applicant seeks to impugn.
“It is not precise enough for purposes of Section (167( (2) (d) of the Constitution as read with Rule 27 of the Constitutional Court Rules and does not meet the requirements of the law – hence this application does not fall within the ambit of Section (167) (2) (d) of the Constitution and is therefore not properly before this Honourable Court,” Mudenda said.
Mudenda noted Section 152(3)(c) of the Constitution places the obligation of examining every SI published in the gazette on the PLC as a separate body or functionary.
“Thus the alleged breach or omission was not done by Parliament but by the PLC and does not amount to failure by Parliament to fulfill a constitutional obligation,” he said, noting the case therefore did not fall within the exclusive jurisdiction of the ConCourt as no obligation is imposed on Parliament.
“Section 152 of the Constitution deals exclusively with the functions of the PLC only and not Parliament as alleged or at all. All of which means that this application is not properly before this Honourable Court and should be struck off the roll with costs.”
Mudenda also denied allegations that the PLC did not examine SI 144, as it did so on September 26, 2022, and resolved it was not in violation of any constitutional provisions.
“The Committee resolved not to issue a non-adverse certificate until they have had a meeting with ZEC concerning fees in SI 144 of 2022,” said the Speaker and attached minutes of the 15th meeting held by the PLC.
On that same date, Mudenda, the Clerk of Parliament, Kennedy Chokuda, wrote to ZEC inviting them to appear before the PLC and on September 28, 2022, ZEC Chief Elections Officer (Utloile Silaigwana) wrote back informing him the commission is “constrained in discussing the matter as it is subjudice.”
“ZEC has been taken to Court under Case No. H.C 6083/22,” Mudenda said.
PLC then postponed the consideration of the matter until the court makes a determination and Mudenda attached a print out of WhatsApp discussions between the PLC committee members and their chairperson, Jonathan Samukange, which the Speaker argues “means the committee did not breach the constitution as alleged or at all.”
The Speaker emphasised Parliament has not yet decided the PLC’s Report since the Committee is awaiting the outcome of the High Court Case (H. C 6083.22), which will determine the nomination fees.
Mudenda also explained that Parliament’s role is to “simply consider a report which would have been laid before it by the committee” and in this case, “no such report has been placed before Parliament for consideration as the matter is still pending before the High Court.”
