UNION INTERPARLEMENTAIRE
INTER-PARLIAMENTARY UNION
Association of Secretaries General of Parliaments
COMMUNICATION
from
MR A. M. ZVOMA
Clerk of the Parliament of Zimbabwe
on
The Unseating of a Speaker by the Judiciary and its Implications for the
Administration and Business of Parliament
Bern Session
October 2011
1.0
Objective and Scope
This paper chronicles the unprecedented setting aside of the August 2008
election of Mr. Lovemore Moyo as Speaker of the House of Assembly by
the
Supreme Court of Zimbabwe sitting as a court of final appeal in March
2011. The paper relies on the Supreme Court landmark ruling in the case of
Jonathan Moyo and 3 ors v Austin Zvoma NO and Anor, SC 28/10. It reviews
literature
and
legislative
practices
from
regional
and
international
parliamentary jurisdictions on precedence in the removal of a Speaker from
office by the Judiciary.
2.0
Introduction and Background
The Speaker of the House of Assembly in Zimbabwe is elected in terms of
Section transacts any business. The Constitution and Standing Orders (SOs) of
the House of Assembly do not give the Clerk any powers in the conduct of an
election of Speaker. Section 39(1) and (2) of the Constitution simply states:
‘When the House of Assembly first meets after any dissolution of Parliament
and before it proceeds to the dispatch of any other business it shall elect a
presiding officer to be known as the Speaker; and whenever the office of the
Speaker becomes vacant the House of Assembly shall not transact any
other business until a person to fill that office has been elected’
SO 6 provides that;‘If more than one person is proposed as Speaker, the Clerk shall conduct
the election of Speaker by a secret ballot.’
2
Accordingly, pursuant to a proclamation by the President, the Clerk convened
the first meeting of Parliament on 25 August 2008 for the purposes of swearing
in the Members of Parliament and electing Presiding Officers of the two
Houses. Following the nomination of two candidates, the Clerk conducted
an election of Speaker in accordance with clearly laid out rules. He read out the
previously circulated rules to Members. The rules provided that upon receipt
of a ballot paper, each Member was required to:
i)
cast his/her vote in a Polling Booth placed in the Chamber;
ii)
fold the ballot paper;
iii)
show the stamped side to the Clerk; and
iv) deposit the folded ballot paper in one of the two ballot boxes on
the Table of the House.
Needless to say, the Clerk reminded Members that, as products of the same
electoral process which international norms expect to be transparent, free and
fair, they were equally expected to observe and respect the rules. Members
refused to leave the Chamber after voting as requested. At this juncture, it is
important to note that during the electoral process, six members, including Mr.
Lovemore Moyo, defiantly and openly displayed their ballots in the process
showing other members how they had voted. The Clerk decided against taking
any action as he considered that this would have worsened an
already near chaotic situation. This was to become a contested point during
the court hearing. At the conclusion of the election process, the Clerk declared
Mr. Lovemore Moyo duly elected. The open display of ballots was not
disputed in Court. What became contentious was its effect on the electoral
process and whether or not the Clerk had complied with the law when he
3
allowed those votes to be deposited into the ballot boxes and counted as valid
votes.
3.0
Tenure of Office of Speaker
The tenure of office of a Speaker is provided in the Section 40(2) of the
Constitution. The Speaker shall vacate his office:
i) on the dissolution of Parliament;
ii) if he holds another public office incompatible with that office.
iii) if he is found to be mentally disordered
iv) the High Court declares that he is incapable of managing his own affairs;
v) he has been convicted of an offence under the Electoral Law and the High
Court disqualifies him from registration as a voter or from voting at any
election;
vi)if he has been the subject of a preventive detention order for a continuous
period of six months or more.
In addition to the above, the office of the Speaker shall become vacant if the
House of Assembly resolves by the affirmative votes of not less than twothirds of its total membership that the office of the Speaker shall become
vacant (our emphasis).
Similar provisions exist in other jurisdictions. In Nigeria a Speaker may be
removed by the votes of not less than a two-thirds majority while in South
Africa the National Assembly may remove the Speaker or Deputy Speaker
from office by a resolution of the majority of members present.
4
Our research suggests that constitutions of many countries are silent on the
removal of a Speaker from office by the Judiciary. This brings to the fore the
question of the involvement of the courts in unseating a Speaker and its
implications.
4.0
Application to the High Court
Aggrieved by the conduct of the election of Speaker, Professor Jonathan Moyo
made a chamber application to the High Court praying for the setting aside of
Mr. Lovemore Moyo’s election. In his Founding Affidavit, Professor Moyo
submitted that the election had not been conducted in terms of Section 39 of
the Constitution of Zimbabwe, as read with Standing Order 6 of the House. He
further pointed out that the election had not been conducted by secret ballot
as at least six members of the MDC-T, including Mr. Lovemore Moyo, had
defiantly and openly displayed their ballots; and that there was ‘chaos’ in the
Chamber during the elections. Through its verdict of 10 March 2010, the High
Court upheld the election of Speaker after concluding that the display of
ballots by six members did not materially affect the outcome of the election.
Professor Moyo reacted by appealing to the Supreme Court.
5.0
Supreme Court Appeal
In the papers filed at the Supreme Court, Professor Moyo argued that the High
Court erred in finding that a proper election of Speaker of the House of
Assembly was conducted in terms of the Constitution and the law. He
submitted that the learned Judge of the High Court had erred in condoning the
Clerk’s failure to implement and enforce his own procedures for the election.
He also argued that the High Court erred in finding that the exposure of
completed ballot papers was not a violation of the secret ballot. Professor
5
Moyo further argued that the learned Judge erred in both finding that a secret
ballot took place and in interpreting Section 39 (2) of the Constitution as read
with SO 6 of the House as directory and not peremptory.
6.0
Supreme Court Judgement
After hearing submissions from Counsels representing both parties, the
Supreme Court made the following observations:
‘Section 39 of the Constitution, as read with Standing Order 6, is not a
constitutional or statutory provision conferring the right to vote on a voter in
the form of the Member of Parliament. Section 39 of the Constitution, as read
with Standing Order 6, prescribes how a particular officer in Parliament,
namely the Speaker, is to be elected. It expressly provides that if more than one
person is proposed as Speaker the Clerk of Parliament shall conduct the election
of the Speaker by a secret ballot.
In other words, the use of the words "by a
secret ballot" in the Statute is prescribing the method by which a Speaker is to
be elected. The language is peremptory language (sik). It would be a different
story if the wording of Standing Order 6 were to the effect "If more than one
Member is proposed Members of Parliament may vote by secret ballot to elect
the Speaker". Therefore, ‘ In view of the explicit language of the Statute, it is
not open to the Clerk or any Member of Parliament to substitute the method of
electing a Speaker with another method of their own choice, such as by open
ballot. Put differently, it was not open, for instance, to Members of Parliament
to tell the Clerk that they were waiving their right to vote for the Speaker by
secret ballot or that they wished to vote for the Speaker by open ballot either
individually or as a group. That option was not open to the Members of
Parliament as a whole or to individual Members of Parliament.”
6
The Supreme Court noted that voting by secret ballot entails the following
procedures;i) Each Member receives a ballot paper;
ii) Each Member indicates on that ballot paper the candidate of
choice in private and to the exclusion of the public;
iii) The Member deposits his/her ballot paper into the ballot box
privately without disclosing his/her ballot paper to the world.
The process of voting by secret ballot ends with the ballot paper being
deposited into the ballot box. Thereafter, a Member would not be violating the
secret ballot if he/she discloses whom he has voted for.
The Court found that Parliament had, in violation of the law, conducted a
cross-breed partly secret and partly open election. The Supreme Court
concluded that Parliament intended to render invalid an election wherein the
Clerk fails to comply with the provisions of Section 39 of the Constitution, as
read with SO 6. Thus, failure to stamp his authority and to comply with
peremptory provisions rendered the elections a nullity. The Clerk should have
insisted that Members conduct themselves in accordance with set instructions.
The Court concluded that six named Members did not vote by secret ballot
and, therefore, their votes were irregular and should not have been deposited
in the ballot boxes. Consequently, their inclusion contaminated the final
outcome of the election of the Speaker rendering it invalid and hence the
nullification of the election results.
7.0
Implications of the Judgement
7
In light of this development a number of questions arose:
i) The Judiciary’s jurisdiction in determining the regularity of the election
of Speaker;
ii) The application of the Doctrine of Separation of Powers a matter
occurring within Parliament;
iii) Mr. Lovemore Moyo’s status after the Supreme Court set aside his
election in 2008 given the fact that his seat had been declared vacant;
iv) The constitutional and other provisions the Clerk would use to conduct
a fresh election for Speaker.
8.0
Jurisdiction
Zimbabwe is a constitutional democracy in which all arms of the State are
subordinate to the constitution. Parliament’s independence from the other two
arms of the State and power to make its own rules in terms of Section 57 of the
Constitution does not exempt those rules from complying with the provisions
of the Constitution. As such, all its actions must have a basis in law. The
Supreme Court ruling is in line with the principles of constitutionalism which
states that there ought to be strict adherence to constitutional provisions,
particularly the peremptory provisions. Where Parliament lacks internal
remedies to deal with failure to abide by mandatory provisions, the Judiciary
will intervene. From the
foregoing, it is indisputable that the Judiciary has
jurisdiction in a contested election of Speaker.
9.0
Separation of Powers
The three arms of the State have separate but co-ordinate roles with each being
supreme in its own sphere. In other words, while the Legislature is supreme in
making laws, the Judiciary is similarly supreme in interpreting those laws.
Thus, there is no total separation of powers.
8
10.0
Mr. Lovemore Moyo’s Status after Judgement
The Supreme Court only set aside the election of Speaker for non-compliance
with the secrecy of the ballot. It did not reverse or set aside any other act done
or presided over by Mr. Lovemore Moyo. Accordingly, the Clerk disagreed
with his argument that he reverted to being Member of Parliament for Matobo
North Constituency which he held immediately prior to his irregular election
on 25 August 2008. In the event, Mr. Lovemore Moyo made an urgent
chamber application demanding that the Clerk declares him member for
Matobo North which he abandoned in part for failure to comply with
court rules. Needless to say, neither the constitution nor Standing Orders
repose in the Clerk such
powers. The Clerk accordingly barred former
Member, Mr. Lovemore Moyo, from voting in the subsequent re-run of the
election on 29 March 2011. This is because as de facto Speaker of the House of
Assembly, he had declared Matobo North Constituency vacant after his
election.
11.0
Post-Judgement Implications
The constitution and Standing Orders specifically state:
i) ‘whenever the office of the Speaker becomes vacant the
House of
Assembly shall not transact any other business until a person to fill
that office has been elected’;
ii) the Clerk shall conduct the election’.
The Supreme Court had also previously ruled on Parliament’s failure to
comply with the SOs. In 2002 in the case of Biti and Anor v the Minister of Justice,
Legal and Parliamentary Affairs and Anor, 2002 (1) ZLR 177 (S), the Supreme
9
Court ruled that SOs made in terms of the Constitution have the status of law.
Mr. Biti had approached the Supreme Court praying for it to set aside the
enactment of the General Laws Amendment Act passed by Parliament in
violation of S Os. The Supreme Court accordingly nullified the Act. That
nullification was consistent with another landmark ruling in the United States
where the Federal Supreme Court ruled in the case of Marbury v. Madison
(1803) that the delegated powers (of the Court) include the authority to
determine whether a statute violated the Constitution and, if it did, to declare
such a law invalid. http://usinfo.state.gov (2004).
The Judiciary’s constitutional competence to intervene and interpret the law,
therefore, compels all arms of the State to operate within the confines and
limits of the law. The rule of law enjoins citizens, Members included, to
approach the courts for the resolution of legitimate disputes.
The co-ordinate relationship involving Parliament’s legislative function, the
Courts interpretative role and the Executive’s determination of public policy
and implementation of the law can be summarized as: Enactment,
Interpretation and Implementation (EII or EI2). This contrasts sharply with
the jurisdictions which practice parliamentary democracy defined as a
political system ‘…based on the idea that Parliament is supreme or sovereign’. In
Zimbabwe, the Supreme Court, in the case of Chairman of the Public Service
Commission and Others v. Zimbabwe Teachers Association and Others, 1996 (9)
BCLR 1189 (ZS), affirmed that:
‘We consider that …Zimbabwe, unlike Great Britain, is not a
parliamentary democracy. It is a constitutional democracy. The
10
centre- piece of our democracy is not a sovereign parliament but a
supreme law (The Constitution)’.
Parliament must always exercise its powers within the confines of the
Constitution and not to purport to legislate beyond those powers. The
Supreme Court concurred that the major facet of a parliamentary democracy as
that obtains in the UK is that their ‘constitution does not permit the judicature to
strike out laws enacted by Parliament. Their Parliament, in the field of legislation
is supreme and sovereign’. This contrasts sharply with the case in Zimbabwe
where the supremacy of the constitution is protected by the authority of
the
independent judiciary.
12.0
Consequences of the Supreme Court Judgement
The nullification of the election of Speaker had a number of far reaching
implications. The setting aside of the election of Speaker did not affect or
reverse any other act performed or presided over by the de facto Speaker. The
only unfinished business from August 2008 was to complete the process of
electing the Speaker. Accordingly, the President fixed 29 March 2011 as the
date on which Parliament was to meet and elect the Speaker. Informed by the
Supreme Court’s strict criteria for an election by secret ballot, the Clerk put in
place an elaborate fool proof system for the election to avoid a repeat of
August 2008. He conducted the election in a room where a few members were
allowed at a time, thus guaranteeing orderliness of the process. All the 199
members who voted complied with strict instructions save for one member
whose ballot was disqualified as a spoilt paper. The process which was closely
observed by two election agents for each of the two candidates and the press
fully complied with Supreme Court criteria for a secret ballot. Mr. Lovemore
11
Moyo garnered 105 votes against 93 obtained by the ZANU PF candidate,
Ambassador S. K. Moyo.
13.0
Lessons Learnt
The rulings of the Supreme Court relating to Parliament are in line with the
principle of the separation of powers. The landmark Supreme Court ruling is
important in that it underscored the need for Parliament to strictly adhere to
the Constitution and the Standing Orders in the conduct of its administrative
and
legislative
business.
The
ruling
was
also
precedent-setting
in
circumscribing the criteria for and conducts of elections for Presiding Officers
by the Clerk.
14.0
Conclusion
Parliament‘s total compliance with the Supreme Court’s ruling is a clear
indicator of the state of comity which exists between the Legislature and the
Judiciary. The ruling did not challenge the privileges of Parliament but failure
to comply with the law. The ruling should guide both current and future
Administrations of Parliament on the need to adhere to the laws of the country.
15.0
References
1.
Constitution of Zimbabwe
2.
Constitution of the Republic of South Africa
3.
Constitution for the Federal Republic of Nigeria
4.
Standing Orders for the House of Assembly, Parliament of Zimbabwe, 2005
5.
Privileges, Immunities and Powers of Parliament Act (Cap 2.08)
6.
Outline of the US Legal System, Bureau of International Information Programs,
United States Department of States (2004)
12