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NATIONAL ASSEMBLY HANSARD 20 JUNE 2017 VOL 43 NO 71

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PARLIAMENT OF ZIMBABWE

Tuesday, 20th June, 2017

The National Assembly met at a Quarter-past Two o’clock p. m.

PRAYERS

(THE HON. SPEAKER in the Chair)

ANNOUNCEMENTS BY THE HON. SPEAKER

PARLIAMENTARIANS FOR GLOBAL ACTION (ZIMBABWE CHAPTER) ANNUAL GENERAL MEETING

          THE HON. SPEAKER: I wish to remind the House that Hon. Members of the Parliamentarians for Global Action (Zimbabwe Chapter) are invited to the Annual General Meeting on Wednesday, 21st June, 2017, at 1200 hours, in the Government Caucus Room.  New members are welcome.

OPEN LEARNING CENTRE CAPACITY BUILDING WORKSHOPS

THE HON. SPEAKER: I have to inform the House that the Open Learning Centre is inviting Chairpersons of Committees to two half day capacity building workshops  on  Friday, 23rd  and Monday, 26th June, 2017 at Meikles Hotel, Mirabelle Room, from 0800 hours to 1400 hours on each day.  Lunch and refreshments will be provided.

INVITATION TO THE 2017 PROVINCIAL FOOD FAIRS

THE HON. SPEAKER: I also have to inform the House that the Ministry of Women’s Affairs, Gender and Community Development is inviting all Hon. Members to attend the 2017 Provincial Food Fairs for the dried vegetables, cereals and fruits in all provincial centres throughout the country on Saturday, 1st July, 2017.  Details of the programme have been placed in your pigeon holes.

*HON. CHINOTIMBA: On a point of order Mr. Speaker Sir.  My point of order is that a hero has died, Cde, Dickson Chingaira. He fought for this country without any political affiliation. If it is possible, can we observe a minute of silence in recognition of Cde. Dickson Chingaira as Members of Parliament.  I thank you. – [HON. MEMBERS: Inaudible interjections.] –

THE HON. SPEAKER: Order, even in death you can heckle! Hon. Chinotimba requests us to pay our respect to Cde. Dickson Chingaira who has passed on.  I believe there should not be any objection to that. 

* HON. MURAI: I want to support Hon. Chinotimba on this issue which is very important, that we should remember and mourn Cde. Dickson Chingaira.  What I want to add is that as Government, we should be concerned about people’s lives when they are still living until their death. Mr. Speaker Sir, I am really talking about what pains and touches me. Mr. Chingaira became ill and no one was taking care of him to the extent of Hon. Sithole here giving him assistance but what is important is that we should encourage each other to care for the living until someone dies. I support Hon. Chinotimba on what he has said.

          *THE HON. SPEAKER: Hon. Member, you have articulated very well. Let those who want to get lost get lost.

          All Hon. Members rose from their seats and observed a moment of silence.

MOTION

BUSINESS OF THE HOUSE

          HON. MATUKE: I move that Orders of the Day, Numbers 1 to 8 on today’s Order Paper be stood over until Orders of the Day, Numbers 9, 11 and 14 have been disposed of.

          HON. RUNGANI: I second.

          Motion put and agreed to.

MOTION

REPORT OF THE PARLIAMENT OF ZIMBABWE DELEGATION TO THE CHINA INTERNATIONAL TRAVEL MART

          HON. S. MPOFU: I move the motion standing in my name that this House takes note of the Report of the Parliament of Zimbabwe delegation to the China International Travel Mart, held from the 11th to the 13th of November, 2016.

          HON. SEREMWE: I second.

          HON. S. MPOFU:  

1.0    Introduction

         1.1    A delegation comprising two Members of the Portfolio Committee on Environment, Water, Tourism and Hospitality Industry, Hon. S. Mpofu and Hon B. Seremwe and Ms Macheza as the Secretary to the Delegation travelled to Shanghai, China to attend the 2016 China International Travel Mart (CITM).   The trip was as a result of an invitation by Zimbabwe Tourism Authority.  The CITM was held from 11th to the 13th of November 2016 at Shanghai New International Expo Centre.  CITM is universally acknowledged as the largest travel market in Asia and has, over the years, been a major attraction in the tourism industry.  It is an annual event generally held in Shanghai and Kunming on an alternate basis.  The CITM 2016 was jointly organised by China National Tourism Administration, Civil Aviation Administration of China and Shanghai Municipal People’s Government.

         2.0    Attendance at the CITM

         2.1    The following African countries/organisations participated at CITM 2016; South Africa Tourism, Kenya Tourism Board, Serena Hotels (Kenya), Ghana, Tanzania, Seychelles Tourism Board, Equatorial Tourism Ministry and Zimbabwe represented by Zimbabwe Tourism Authority.

         2.2    Zimbabwe Tourism Authority explained to the delegation that Zimbabwe as a tourist destination is not known in China compared to other SADC countries.  Zimbabwe as a country needs to invest seriously on marketing its culture and tourist attraction areas in order to increase the number of tourist arrivals. 

         2.3    The participation by Members of the Committee enabled them to have an appreciation of the importance of participating at international tourism shows.  The Zimbabwe Tourism Authority also wanted Members of the Committee to appreciate the high level of funding other countries were allocating to destination marketing.  Meetings with strategic partners and other participants such as Mr Bo Wu of Pacific Association of Travel Agents, Dr Adam Wu of China Business Network and Mr Dibu Dave Mbako of Cloudwave were held.  The delegation noted that other countries were taking advantage of these international shows to advertise their countries.  The delegation further noted that other countries had their airlines, tour operators and hotels advertising their products and also exhibiting their culture at CITM. 

         2.4    The Chinese agents and fellow tourism boards in African countries who had meetings with the delegation advised that Zimbabwe’s profile needs to be magnified by vigorous advertising.   The tourism industry was not aware of the many attractions that are found in Zimbabwe.  An example was given that the Chinese respect culture and family values.  If Zimbabwe was to advertise its culture and also Great Zimbabwe, it would attract a number of tourists who were interested in seeing something different and unique.  For business people seeking business opportunities, rigorous advertising could attract some investors into the country.

         3.0    Funding for Marketing Tourism Industry

         3.1    Zimbabwe Tourism Authority said that it had a limited budget for advertising.  The funds are allocated to the Authority and those it generates are not enough to undertake the kind of advertising other countries were embarking on.  For example, ZTA was not sure whether it would participate at the CITM in 2016 because funds were not made available in time and Zimbabwe could, therefore, not confirm its attendance.  Business people and marketing agents assumed that Zimbabwe was not participating in the 2016 Expo and so no marketing was done for Zimbabwe in advance.  It would be an advantage if Zimbabwe could confirm its participation at CITM in advance by paying the required amounts and informing the Chinese marketing agents so that the tourism industry is aware of Zimbabwe’s participation at the 2017 Expo.

         3.2    Some African airlines were very visible and have direct flights from China to their destinations.  It is a fact that aviation brings tourism and business to a country and without tourism, the economy is disadvantaged and revenue generation is low.  The presence of the national airline as such would help Zimbabwe to become a well-known destination.  It would be an ideal situation to have the national airline introducing a direct flight from destinations such as Beijing, Guangzhou and Shanghai to Victoria Falls in order to capture Chinese tourists. Other tour operators and companies should also take advantage of such expos to advertise their businesses so that potential visitors get an appreciation of what Zimbabwe can offer.

         4.0    Partnerships

         4.1    Meetings were held with South African Tourism Board, China Business Network and Ethiopian Airlines who were all interested to partner with Zimbabwe in destination marketing.   A meeting with Mr. Bradly Bouwer of the South African Tourism revealed that a lot needs to be done to market Zimbabwe’s many tourist attractions.  He said that South African Tourism is prepared to work with the ZTA in joint marketing activities.  He emphasised that South Africa needs Zimbabwe in terms of tourism.  Visitors from Asia and Europe prefer to visit more than one country when they decide to come to Africa for holidays.  For example, a group visiting South Africa, would take advantage of visiting Zimbabwe as well since the two countries are neighbours.

         4.2    Chinese travel consultants said Zimbabwe is not known in China compared to other African countries and a lot of marketing is needed.  It was recommended that Zimbabwe should engage professional destination marketing companies to undertake marketing activities in China.   It was pointed out that the Chinese were looking for new tourist destinations in Africa and Zimbabwe has a great potential to capture the growing market.

          4.3   The delegation was impressed that despite the inadequate advertising, Zimbabwe managed to participate at CITM and observed a lot of interest by different key stakeholders.  Indeed Zimbabwe’s presence was noticed as evidenced by the number of people who were visiting the stand.

         4.4    ZTA’s future vision is to explore other destination marketing strategies such as road shows and workshops in order to build confidence about Zimbabwe and need to be adequately funded in order to achieve its mandate.  Countries such as Zambia, Botswana, and Namibia who were said to be receiving more Chinese visitors than Zimbabwe were now concentrating on road shows.

         4.5    The Chinese Marketing Agents appealed to the Government to consider introducing a landing visa for its Chinese visitors.  They complained that the two weeks waiting period for a visa application was too long.  They gave an example that for a group visiting South Africa and Zimbabwe, it would take them a month to get their visas because the South African government also takes two weeks to process visas.

4.0            Observations and Recommendations

         4.1    Destination Brand

         The delegation views destination branding as an imperative for the Ministry.  The Ministry and ZTA need to embark on a destination Brand Audit Internationally and brand refreshment process.

4.2           Destination Image

         In order to manage perceptions in some markets, there is need for the Ministry, through ZTA, to be afforded the opportunity to make the necessary visits to source markets to market the country.

4.3           International Market Presence

         This is crucial to improve market representation in source markets.

4.4           Digital Marketing

         The delegation views improvement in online presence as vital to attract tourists from all over the world. There is dire need for the Ministry to develop a virtual tour for visitors, conduct destination online campaigns and develop market specific mobile applications.

4.5            The delegation recommends that the funding of the Zimbabwe Tourism Authority should be set as a percentage of what the sector contributes to the fiscus in this year’s budget allocations.

         This is in view of the fact that, the Ministry, through the Zimbabwe Tourism Authority, has the capacity to effectively deliver on its mandate. Therefore, there is need for more support from Government in the form of financial and other resources. The delegation notes that Tourism can contribute significantly to the socio-economic development of the country. I thank you.

          THE VICE PRESIDENT AND MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. E. MNANGAGWA):  I move that the debate do now adjourn.

          Motion put and agreed to.

Debate to resume: Wednesday, 21st June, 2017.

MOTION

BUSINESS OF THE HOUSE

THE VICE PRESIDENT AND MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. MNANGAGWA):  Madam Speaker, I move that Orders of the Day, Numbers 11 and 14 be stood over until Order of the Day, Number 1has been disposed of.

Motion put and agreed to.

COMMITTEE STAGE

CONSTITUTION OF ZIMBABWE AMENDMENT (No. 1) BILL [H.B. 1, 2017]

First Order read: Committee Stage: Constitution of Zimbabwe Amendment (No. 1) Bill [H.B. 1, 2017].

House in Committee.

On Clause 1:

HON. GONESE:  Thank you very much Mr. Chairman.  In respect of this Bill, I really want to plead with the Hon. Vice President. I really want to beg the Hon. Vice President of the Republic of Zimbabwe to reconsider bringing this Bill.  I know that at the Second Reading, the Hon. Vice President supported the Bill and moved for its Second Reading but I think upon reflection, I believe that the import of passing this Bill is really to thumb our noses at the people of Zimbabwe. 

As we indicated during the Second Reading debate, there are a lot of people who are of the opinion that we should not be bringing this particular Bill at this particular point in time.  In respect of those sentiments, I really want to ask the Hon. Vice President to have a rethink because I do not believe that this Bill really is necessary and for that reason Mr. Chairman Sir, I am saying if there is no need for this particular Bill to be brought, if there is no justification for this august House to be passing a Constitution Amendment Bill then it would be appropriate for us to say that this clause, I know that it is normally the Short Title which describes what we are supposed to be doing. If we were to have a reconsideration,  I think that the best course of action would be simply to say that no, we cannot go along with the Short Title because we should not be going along with that Bill. 

It is not necessary Mr. Chairman and I therefore object to that Short Title of the Bill for the simple reason that I am totally opposed to the Bill and I believe that I speak for the majority of the Zimbabwean people who overwhelmingly voted for the adoption of this Constitution and also the three political parties which were represented in Parliament at the particular point in time who were part and parcel of the Global Political Agreement.  They gave their wholehearted support to the amendment or the adoption of the new Constitution and because of that overwhelming support which the people of Zimbabwe gave to the new Constitution, we should not be tearing it to shreds at this point in time.  I therefore say that I cannot, in good conscience, support the Short Title of the Bill.  Those are my submissions Mr. Chairman and I would really want the Hon. Vice President to take this into consideration using a by-partisan approach.

HON. MAJOME:  I rise in support of what was said by Hon. Gonese regarding the views of the public on this Bill and therefore, its very short title of amending the Constitution.  I also want it to be placed on record that in terms of the Public Hearings that were held and were recorded even by dictaphone were not availed. I also want to raise concern that I am hoping that the report of the Public Hearings is going to be made available because it was not available when we debated the Bill. 

I am in support in support of the view that this Bill was vehemently and overwhelmingly rejected by the public in Zimbabwe that they do not want an amendment of the Constitution at this stage. I thank you.

HON. ADV. CHAMISA:  I rise with a very heavy heart to be debating at this Committee Stage this very important Bill particularly the issue of the Short Title.  I just rise to indicate the plea that I wish to amplify which has already been made by other colleagues.  The plea that is being made to the Hon. Vice President to revisit and revise the view that has been taken by our Government that it is necessary to amend the will of the people, that it is necessary to amend the mandate of the people.

The will of the people cannot be amended and the will of the people cannot be usurped.  What is clear in this Bill is that it seeks to usurp and takeover and take away that confidence of the people that they have given and reposed, not just in this Constitution but also in the supremacy of constitutionalism.  Hon. Chairman, I am saying this because the attempt to have this Short Title that seeks to be the first amendment will go a long way in withdrawing and subtracting the confidence of the people in Government.  To say that the Government has been given the mandate to govern instead of governing in a way that aligns the will of the people to the dictates of the Constitution, Government has taken an off tangent.  It has chosen to come and call on this Parliament to violate the same Constitution. 

How are we violating the Constitution?  You may have regard to Section 119, which is the Role of Parliament in terms of the supremacy of constitutionalism.  We, as Parliament, are supposed to defend the Constitution against any sectional interest that may seek to retard or even reverse the gains of constitutionalism in this country.  This amendment is one such amendment that is not profitable to the national interests.  It does not advance national interests and the big question is who defines national interest? National interest is defined by the people of Zimbabwe.  How did the people of Zimbabwe define the national interests? They spoke and they spoke eloquently when they were consulted on what should be done in terms of how certain key offices and officers are supposed to be appointed.  So, it is my humble submission at this juncture without abusing you.

          In the national interest which is an interest that captures the mood, the interests of all the people of Zimbabwe.  May we, Hon. Vice President, focus on things that matter?  What matters and what are of national priority at the moment is to align our Constitution to all the laws that we have in the country, align all our laws to the Constitution that we have in the country.  We have already appointed the Chief Justice, he is serving, and we have not seen any mischief that is worth to merit a national emergency and a national panic response from the Government. 

So, one wonders what is the source of motivation for this kind of a Bill. As Parliament, we have a duty to flash warning lights, hazard lights when we see that the Government is driving us off the road. This is why we make the appeal to the Hon. Vice President and Minister of Justice, Legal and Parliamentary Affairs; please may you kindly allow the wisdom that comes from the alternative to visit you, enlighten you and to encourage you to abandon the route that we feel is a bit dangerous and risky for our country.

  We cannot be a country that has a Constitution without constitutionalism.  We cannot be a country that comes to Parliament hardly before the ink has dried; we are already subtracting certain letters and certain words.  We need to understand that the people are the ultimate Government.  We need to understand that the people are the ultimate, umpires of how nations are run.  So, may it be understood Hon. Vice President that this is our plea and appeal that this title be abandoned with grace.  I thank you.

HON. ZIYAMBI: Thank you Mr. Chairman.  I rise to add my views on the Constitutional Amendment No. (1) Bill.  First of all, I want to say that we are going Clause by Clause, dealing with the amendments so that we scrutinise them and we pass; but I have noticed that we are debating things that  are not relevant to the particular Section, which I believe is not in order.  If we are talking about the short title, we are supposed to address the short title.

Secondly, when you look at the Constitution, when it was passed, it has a provision for its own amendment.  So, it will be very wrong for us to sit here and lie to ourselves that constitutionalism means that when you pass a Constitution, you cannot amend it.  Any Constitution in the world has got a provision for its own amendment and that is what is constitutionalism.

I want to add also to say that the notion that you cannot amend a Constitution a day after passing it is not correct.  If you are moving in a certain direction and you notice that there is a big hole and you are about to fall into a pit, even if you had agreed that let us move in that particular direction, you have to change direction and go towards a safe direction.  All Hon. Members of Parliament in this august House were voted in by members of the public - we have a mandate which we got from the people. 

So, when we sit here and enact laws, we are doing it by virtue of the powers bestowed on us by the people.  So, for us to sit here and say that we are taking away the people’s power that is a very big lie.  This Constitution clearly states that.  When we are voted in, we are supposed to pass laws for the good and just governance of men and we have been given that power by the people to do that.  So, when we are in here, we are representing the people.  Whatever we decide here depicts the picture that is out there.

So, I am seeing that there are certain individuals maybe because they feel that they do not have the votes of the people, they want to smuggle in things that are not in the Constitution to indicate that that is constitutionalism – that is wrong.

Thirdly, I would want to say that as regards this Bill, I challenge anyone that there is nothing wrong both in its spirit and its content.  I am saying so guided by the fact that if you go to most jurisdictions that developed this system, here in Zimbabwe we used to have madzishe nemasabhuku, we did not have judges and magistrates.  Those countries that developed this system, still use the same system.  So, I do not see why we should we cry and say that this is a wrong amendment. I thank you.

HON. MLISWA: Mr. Chairman, I want to thank you for recognising me.  I think the beauty of democracy is that we can all debate, but equally the majority will have their way and the minority will have their say.  This is the beauty of democracy.  So, I actually applaud other Members of Parliament who equally have to object because that it is on a point of constitutionalism because if you are not able to debate then there is no point of the amendment. 

However, why should we always talk about constitutionalism when we play strokes for different folks.  When it suits you it is okay but what does a Constitution say, which is the bible that we follow.  It has a provision for amending the Constitution.

Hon. Chair, it gives the right to those who are not happy with this Section to amend it too.  So, the other side can equally push the amendment of 328 in the Constitution and say we do not need it.  No one is stopping them, because it seems to be a thorn in the flesh for them. While it is a thorn in the flesh for them, nothing stops them from amending the Constitution – it is very clear.  So, to me, I think we had the First Reading; we had the Second Reading and the debate that we are having right now is not really talking about certain clauses.  They already have a certain attitude that we do not want it.  We want to be the best democracy in the World. 

They say America is the best democracy in the world – [HON. MEMBERS: Inaudible interjections.] - it is pretty clear that America, whether you like it or not, in fact I will say yes, America is the best democracy in the world.  While they are the best democracy, the President appoints the Chief Justice, there is absolutely nothing wrong with that.  So, to me I think it is important that we are also in line with modern trends in politics.  We cannot be behind as Zimbabwe. They seem to be targeting the Vice President.  The Vice President represents people.  In moving this motion he has a mandate to represent people – [HON. MEMBERS: Inaudible interjections.] - I think it is important to separate the Office of the Vice President and the people. 

I saw Hon. Gonese literally going on his knees begging the Vice President, “Please do not amend it.” – [HON. MEMBERS: Aah] – He said it, “I am begging you Mr…”  As much as you beg the Vice President, the mandate is not from him, it is from the people. We must understand that – [HON. MEMBERS: Inaudible interjections.] – we are not in this House to beg or ask for leniency.  We are in this House to uphold the Constitution of the country and it has no section which says you can beg someone not to follow the mandate of the people. 

I am not a lawyer but we are seeing the impression we are getting from the lawyers going against the Constitution. The other day I said, there is a provision in the Constitution, which is very clear – [HON. MEMBERS: Inaudible interjections.] -  To me Mr. Chairman, I wonder which law school they went to.  I do not think they went to a law school because the law school clearly tells you that you must respect the rules of others.  To me, it is sad that three top lawyers from the opposition stand up to go against the Constitution.  Let us adhere to the Constitution.  Let us move with what needs to be done.  They do not have to point to any clause.  There is no clause in the amendment that they have to point to that they believe is not proper.  It is all a blanket statement from them.  As such, it is important that the will of the people prevails in this House.  The will of the people shall prevail through the people’s representatives. 

Understandably so, those who are representing the people must equally understand that there is the other side which has more people.  In having more people, we do not want to be wasting time when you do not have the numbers at the end of the day.  We need to move with business of the day.  There are more important things to talk about in this country rather than us taking so much time on an amendment of the Bill which we know is in line with the Constitution.  All we are doing is making unnecessary noise, instead of pushing the Zimbabwe Electoral Commission (ZEC) to open the Voter Registration so that you can be empowered and ensure that you are also able to dictate the pace of the politics.  Thank you.

HON. NDUNA: Thank you Hon. Chairperson.  I will follow what my predecessor has said.  I will also try and address my debate to the Short Title.  However, as the precedent has been set here, there seems to be holistic approach in terms of debate to the whole Bill.  I will also align myself to that.  Contextually, how this Bill has been brought to Parliament is quite constitutional, as has been alluded to by the former Speaker on Section 328…

THE DEPUTY CHAIRPERSON: Order Hon. Member.  Those who are to debate, it should only be on Short Title.  If you want to go beyond that, we may not finish.  Let us restrict our debate only to the Short Title.

HON. NDUNA: Hon. Chairperson, the Short Title that you alluded to does arise and is well in place and I support it.  I want to say, for the avoidance of doubt, the Short Title shall remain and stay because of the numbers.  Politics is a game of numbers and it is what brings us to Parliament.  As I said before, with the 50 000 Constituency members whom I represent, they speak with one voice to and about and are in support of that Short Title. 

Hon. Chairperson, just in case the Leader of the House and Hon. Vice President goes out of this House thinking that he has been let down by being the only person who is a creature of the Constitution;  I stand here and say he should walk with his head high, chest out and shoulders very high, aware and cognisant of the fact that he speaks to and about the majority.  In 2000, we saw what Judiciary Reforms can do after the appointment of the late Justice Chidyausiku when he went in and single-handedly handed us the Agrarian Reform Act of 2000.  We see what this position can do in terms of economic Benefit to the country. 

We have political independence, now we need economic independence.  This incoming Chief Justice, after appointment; it is a clarion call that I have that they should concentrate on mining reforms so that we can use our ubiquitous amount of mineral wealth that we have and make sure that we embark on economic independence.  Mr. Chairperson, the last thing that I want to debate on the Short Title, after the appointment of the Chief Justice, with the powers vested on His Excellency, there should be an eradication of the silo mentality in all Government departments and there should be embracing of the ICT.  We are all creatures of the Constitution and as a nation, we are upheld by the way we uphold our own Constitution. 

I want to speak to America now and say; we stand shoulder to shoulder with them as they castigate terrorism.  Recently, we saw Members of the Congress being targeted as they played baseball or soft ball.  For the reason that we speak with them, we are also embedded with them in terms of castigating terrorism. I now say that they should eradicate and remove unfair sanctions on Zimbabwe Hon. Chairperson, aware that the law makers should not be targeted for their law making.  I thank you.

HON. D. P. SIBANDA: Thank you Hon. Chairperson for allowing me…

THE DEPUTY CHAIRPERSON: May I remind you as well that it is only the Short Title.

HON. D. P. SIBANDA: I am well reminded Hon. Chair.  I think I will base my argument and respond mostly to the last two debates from Hon. Members.  Hon. Chair, I think it is important to say that the argument from this side of the bench is not saying; the law does not allow Government to amend the Constitution in terms of Section 328.  Our argument is that, we do not have to rape Section 328, we do not have to abuse it.  Even as it exist Hon. Chairperson, it is important that we look at it in conjunction with other sections of the Constitution as well.

Hon. Chair, if we look at Section 3 of the Constitution, especially Subsection 2 (e), there is overemphasis that the people of this country have a will that there be strict observance of the Principle of Separation of Powers. Therefore, when we are arguing that we are not supposed or we are calling upon the Vice President to withdraw this amendment, we are saying the people have indicated their will.

          Firstly, they indicated through the public hearings. The public hearings were very clear that the people were not agreeable to the amendment that is being proposed. Secondly Hon. Chair, if you look at the Founding Values and Principles which fall under one of those chapters that are not supposed to be simply tempered with, you will realise that what we are...

          THE DEPUTY CHAIRPERSON (HON. MARUMAHOKO: Order Hon. Sibanda. You should only debate about the Short Title alone.

          HON. P. D. SIBANDA: Mr. Chair, I stand guided. What does the Short Title say? – [HON. MEMBERS: Inaudible interjections] - No, I am asking what the Short Title says.

THE DEPUTY CHAIRPERSON: The Short Title is just a title and nothing else.

HON. P. D. SIBANDA: It says Amendment No. 1. Is it not so? It is true that the title is the amendment to the Constitution and I am speaking to the amendment to the Constitution. I am not going beyond that Hon. Chair but I am within the Short Title. So, I am basically arguing that the amendment, this Short Title which is the amendment to the Constitution No. 1 is not...

THE DEPUTY CHAIRPERSON: Then you can ask for an amendment on the Short Title but that is not the case. It is only the Short Title that we should debate to. Hon. Sibanda, please stand guided and you may continue.

HON. P. D. SIBANDA: Hon. Chair, the Short Title states that this is an Amendment No. 1 to the Constitution of Zimbabwe. That is what it is saying. – [HON. MEMBERS: Inaudible interjections] - I am saying this Amendment No 1 of the Constitution is contrary to the will of the people of the country. That is what I am simply saying Hon. Chair. I am not going beyond that and I am not debating the merits or anything else. I am simply saying if we look at this Amendment No. 1 Hon. Chair, it violates some of those key fundamental principles that were laid down in this Constitution.

HON. ZIYAMBI: Mr. Chairman, if we are going to go clause by clause, the first clause is Short Title and it merely states that this Act may be sighted as the Constitution of Zimbabwe Amendment No. 1 Act.

          Hon. Majome having stood up.

          HON.  ZIYAMBI: How do you raise a point of order against a point of order? Mr. Chairman, if we are to proceed, let us focus ourselves on whether this short title is correct or not. If it is Amendment No. 1, then we proceed, but if we are to go into the merits of what is below it and not discuss whether this is number one, we have gone outside the jurisdiction of what we are doing pertaining to Clause 1.

          HON. P. D. SIBANDA: Hon. Chair, I appreciate that this is an opinion coming from the other side, but it is not a fact. It is merely an opinion that my elder brother is giving. We appreciate his opinion but he should also listen to our opinions. So Hon. Chair, I am saying...

          Hon. Maridadi having stood up to make a point of order.

          THE DEPUTY CHAIRPERSON: Order Hon. Members. We do not want to waste time by making point of orders. I am only giving you that chance and no more. You are to debate not to your point of order.

          HON. MARIDADI: Mr. Speaker, the reason we are here, if it is going to take us 24 hours to just debate a Short Title, so be it. This is the reason why we are here. Secondly, Hon. Ziyambi stands up to give his opinion, in what capacity? He is not the mover of the motion. He must keep his opinion to himself and he must not try to lecture us on how to debate in Parliament. He must sit down and keep quiet. If it is going to take us three weeks to debate this, let us debate it. It is a point of order that he is raising and he cannot pass it as fact and as final. It is not final. It is his opinion and he is entitled to it but he can keep it to himself. If he gives us that opinion, he cannot pass it as the final verdict to this debate. Thank you.

          THE DEPUTY CHAIRPERSON: Order, you are doing the same as he is doing. Who has given you that authority? - [HON. MEMBERS: Inaudible interjections] - Order, order. You may continue Hon. Sibanda.

          HON. P. D. SIBANDA: Thank you Hon. Chair. I was still on a point where I was saying this Short Title militates against the will of the people of Zimbabwe. The people of Zimbabwe indicated especially in Chapter One which is one of the most sacrosanct chapters in the Constitution that their desire is that observance of the Principle of Separation of Powers should exist in the country and in the manner that Government operates itself. In as far as this amendment or this Short Title is concerned, that it relates to affecting the Principles of Separation of Powers.

Hon. Chair, I believe that especially after the people of Zimbabwe showed their objection during the public hearings. Therefore, it is important that the Hon. Vice President should consider withdrawing this amendment. He has this Short Title, if it can pass to be an Amendment Act without a Short Title; I think it will be a very good amendment. I think I want to refer to what Hon. Mliswa indicated. He stated that the American President is allowed to appoint the Chief Justice, true but subject to certain conditions. That American appointment is subject to the approval of the representatives of the people. But this Short Title that we are seeing in this House has got nothing to do with the approval of the representatives of the people. It is about one organ which is the Executive, taking the whole responsibility of appointing the three key offices in the Judiciary.

Hon. Chair, it is my view that this is a direct attack on the Principle of Separation of Powers which is protected in terms of Section 3 of the Constitution. Therefore under the circumstances, I believe that we should not abuse Section 328 to say it allows certain sections to be amended without first going back to the people therefore we should attack their will. I believe that since this amendment touches on this key and fundamental aspect of our governance system that the people desire, we should subject it to some better kind of scrutiny than merely to use the so called majority numbers some have in the House because the problem Hon. Chair is that, we are simply dragging this amendment through the throat of Zimbabweans who have openly said that they are not willing to accept it.  Thank you Hon. Chair for allowing me to debate.

          THE HON VICE PRESIDENT AND MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. E. MNANGAGWA):  Thank you Mr. Chairman.  I wish to express my gratitude to the Hon. Members especially from the opposition; Hon. Gonese, Hon. Majome, Hon. Chamisa and indeed Hon. Sibanda…

          HON. GONESE: Sorry, if you may listen to me.  Mr. Chairman, you cannot say you are not listening to me.  I think you should also accord me an opportunity.  Can you allow me – I am the opposition’s Chief Whip in this august House.  I will take my seat but I think that you should also afford me an opportunity to express.  Mr. Maridadi stood up, I saw him, he stood up. 

On a point of privilege – I am the Chief Whip of the opposition, I am and I am speaking on behalf of my caucus.  I saw him standing up and you may not have seen him but I saw him standing up.  If there are cameras, they will have recorded that he stood up.  Also Mr. Chairman, we have got a caucus of the opposition and I am the Chief Whip of that Caucus.  It is within my rights to stand on behalf of my colleagues.  That is the reason why there is a chief whip and leader of the opposition. - [HON. MEMBERS: Hear, hear.] – I am standing on their behalf because I have been appointed by the party to be their Chief Whip in this august House.  So, I am saying he stood up.  That as it may, I will take my seat but I wanted to point out that he did stand up.  You may not have observed as long as you give him an opportunity to speak after the Vice President.

          THE DEPUTY CHAIRPERSON:  Hon. Maridadi, I can see you now but I did not see you when you stood up.

HON. MARIDADI:  Mr. Chairman, I am quite well dressed and I am a visible person.  I am not the shortest person in the House and I stood up.  .

THE DEPUTY CHAIRPERSON:  How come I did not see you?

HON. MARIDADI: I am not as short as the Deputy Minister of Home Affairs but I am tall enough and you should have seen me.

THE DEPUTY CHAIRPERSON:  Order, order please.

HON. MARIDADI: I am not being disrespectful of the Vice President.  He can speak and I will speak after him.

THE DEPUTY CHAIRPERSON:  Order, You can resume your seat.

HON. MARIDADI:  I can speak.

THE DEPUTY CHAIRPERSON:  Yes.

HON. MARIDADI:  Thank you, I can speak.

THE CHAIRPERSON:  No, no, I do not mean now.  You suggested that you speak after the Vice President and then I said take your seat.

HON. MARIDADI:  I thought you said I can speak now.  After the Vice President has spoken I will speak on things that I was supposed to speak now and the things that I should have spoken after the V.P had spoken so I will combine the two.  I will still speak on the short title because I am burning to speak on the short title.

THE CHAIRPERSON:  For the benefit of doubt, you can speak now.

          HON. MARIDADI:  Thank you very much Mr. Speaker, I will kiss you. – [Laughter.] -  I did not say him.

          THE CHAIRPERSON:  Order, order Hon. Members. Be careful how you will do it.

          HON. MARIDADI:  I have a question to the Hon. Vice President.  My son saw the new Constitution of Zimbabwe.  It is written here – if I could not be disturbed by this Hon. Member; it says here – Constitution of Zimbabwe Amendment (No 20), Act, 2013.  Where in the world do you see somebody walking around with the constitution of their country which is written amendment number whatever.  This must only read  “Constitution of Zimbabwe” and it ends there.  This is an amendment that we would want the Vice President to bring to this House which calls this constitution “Constitution of Zimbabwe” without this quotation ‘Amendment No 20’.  Why should we call it amendment number 20?  Where are the other 19 amendments?  Are they in this constitution?

          HON. MLISWA:  On a point of order.  Mr. Chairman, when we are debating issues here, we must not be talking about our sons.  We are here to represent constituencies. – [HON. MEMBERS:  Hear, hear] - Secondly, he did not tell us how old his son is, his son could be three months old.  So, if he is going to talk about his son, he must be able to fully tell us how old the son is but we are here to represent people not sons and daughters. 

          HON. MARIDADI:  Mr. Chairman, I am a proud father of a son and even if he were three months old, he is a citizen of this country and I represent him because he is in Mabvuku.  I cannot waste time arguing with people that do not have children because I have children.  

          HON. MLISWA:  On a point of order, maybe he wants me to tell him how many I have.  For the record, I have 11 children.  – [HON. MEMBERS: Hear. Hear.] -  So how can he honestly say I do not have kids.  I do not know who he is referring this to.

          THE DEPUTY CHAIRPERSON:  Order, order Hon. Members.

          HON. MARIDADI:  I was going to suggest that the Hon. Member should go for paternity tests because all the 11 children might not be his. 

          I think the only amendment to the Constitution that we need at the moment is that which amends this thing which says amendment No 20. That is, I think the most crucial amendment that we need to this constitution because it must be a clean constitution which says Constitution of Zimbabwe.  All the constitutions in the world are written Constitution of Malawi, Constitution of South Africa et cetera.  That is the only amendment that we need. 

          I have debated the short title and I am saying ‘we do not want it’.  What we want is for this Constitution to be cleaned so as to read Constitution of Zimbabwe – chete, zvobvazvaperera ipapo,  Kuti amendment hatisikuda kuzvinzwa.  Ndatenda hangu Hon. Vice President.

          *HON. MANDIPAKA:  Thank you , I am a bit troubled when the other side debate as they are debating. I think we are just wasting time here Mr. Speaker Sir. What they are debating on is, I am thinking deeply but I do not see where this is leading us to. Looking at where we are debating, the title is saying  Constitution of Zimbabwe Amendment No. 1 Bill [H.B. 1, 2017]. As an individual, I do not see what is wrong with this title. I do not know whether we did not want to call it amendment, if it is an amendment. I do not know whether it is not Number 1 as it is written because what we are doing is exactly the title on its own and it is good. I thank you.

          *HON. MUNENGAMI: When we stand up to debate, if one Hon. Member stands up we have to give each other chances. I have two questions Mr. Speaker Sir. The first one is to thank Hon. Mandipaka for he said it is an amendment. The Bill is saying Amendment Number 1 but on our Constitution, it is written Amendment Number 20 which means the Short Title should say Amendment Number 21. I want to know because they are saying Amendment Number 20.

          Secondly, on the issue of separation of powers between the Executive and the Legislature is that when we hold public hearings, it is the duty  of Parliament to go out and hear what the people are saying. We want the Hon. Vice President to give us an answer on the questions that I have asked. I thank you.

          *HON. TARUSENGA: Looking at this Short Title, it caused a lot of mayhem in the country. It is not welcome.

          THE VICE PRESIDENT AND MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. MNANGAGWA): As I had said before, I appreciate the contributions by the Hon. Members from the Opposition especially Hon. Gonese, Hon. Majome, Hon. Chamisa, Hon. P. D. Sibanda, Hon. Maridadi and my other two Hon. Members. Before I forget what you debated on that it should be Number 21, the Act Number 20 is the Constitution of the country and this is Number 1 in amending the Constitution of our country – Constitution Number 20 Act.

          I appreciate your indulgence because the debate from Hon. Members is the same debate which was carried out during the Second Reading debate. I replied to the issues they are raising and those who are not familiar with my replies to the similar issues they are raising now have the liberty to read the Hansard. I want to say that the will of the people in this Chamber is represented by the ruling party. It is true that they also represent the will of the people to the extent that is a minority.

          Secondly, there is no issue with regard to the constitutionalism of the process of amending the Constitution. We have followed what the Constitution provides in terms of procedure to amend this entrenched clause of the Constitution which only requires two thirds majority and not a referendum. So, that has been complied with. Currently, you have put the question of the Short Title which only tells this House that this is the first amendment of our Constitution. It is not the second, third or fourth but this is the first amendment. Others are going to come which we are already looking at.

          The question of the separation of powers doctrine does not mean that each branch is free to do what it wants without accountability to each other. This amendment enforces that separation of powers and with regard to all the issues Hon. Members have raised, I adequately covered them. Just now we are addressing the Short Title which you have answered to and that is what is on the table. People who want to debate perhaps may come to debate when we come to the content of the amendments and not the title. It is Number 1 and it cannot change. I know that it is very important that in society there can be people with wisdom, also in society you can find people without wisdom but both democratically should be respected. I thank you.

          HON. GONESE: It is allowed in terms of Standing Order Number 173 to speak twice.  In so far as the issues which we have been discussing are concerned, I just want to clarify that when we are looking at amendments to the Constitution, we also look at the spirit. When the Hon. Vice President refers to the will of the people, I think we must also bear in mind that the exercise which was undertaken during the Constitution making process under COPAC entailed having at least three meetings in every ward in this country. In 1900 wards, there were three meetings that were held. That cannot be equated to any other process which has ever been undertaken in this country. For that reason, I still want to maintain the stance that we have taken that this is an unnecessary amendment.

          We are not saying that legally or procedurally it is wrong but we are saying that in terms of the substance and in terms of what is desirable for our country, this is not a necessary amendment.  I want to reiterate that our position is not that Section 328 of the Constitution does not allow amendments; that is not our point.  Our point is simply that this particular amendment is not in sync with the aspirations of the people of Zimbabwe as enunciated during the Constitution making process.

 I do not want to repeat myself but I just wanted to make that point so that it is abundantly clear and that the Hon. Vice President has an appreciation of our point of view, which is not that we are saying that the Constitution cannot be amended.  We are very aware that this particular section does not require a referendum.  Be that as it may, we must not abuse the numbers because we must not have the use of the tyranny of numbers.  We must have the monopoly of ideas.  We must have the best ideas which must be taken into account by our Hon. Vice President and not what the majority want but rather what is best for our country.  Those are my submissions Hon. Chair.

HON.  E. MNANGAGWA:  Hon. Chair, whilst I appreciate your indulgence that people continue to repeat and repeat the same things, I will repeat that they can read the Hansard where all those issues are answered.  There is no point of me becoming irrelevant, addressing issues that are not on the table.  What is on the table now is the issue of the Short Title. I thank you.

Clause 1 put…

HON. GONESE:  I object.

THE DEPUTY CHAIRPERSON:  Those who are objecting, could you show by standing up.

[Hon. Members from MDC rose from their seats.]

HON. GONESE:  Mr. Chair, I think we have asked for a division, let us divide the House.  That is the procedure – [HON. MEMBERS:  Inaudible interjections.] –

THE DEPUTY CHAIRPERSON:  Order, order.  Just resume your seat.  In terms of Standing Order Number 125 (2) which says if the opinion of the Chair as to the decision of a question is challenged, he may direct that a division must take place.  If however I decide or the Chair is of the opinion that the division is unnecessarily claimed or is an abuse of the rules of the House.  The Chair must decline to direct that a division must take place and I must immediately declare that the resolution of the House or the Committee as the case maybe.  So I decline and Clause 1 is adopted and I put Clause - [HON. MEMBERS: Inaudible interjections.] -

HON. ADV. CHAMISA:  On a point of order, Hon. Chair, I hear you but this is a very important constitutional point.  You are aware of previous court rulings and constitutional court determinations around the constitutionality of proceedings in Parliament.  You know the  - [HON. MEMBERS: Inaudible interjections.] - 

THE DEPUTY CHAIRPERSON:  Order Hon. Chamisa!

HON. ADV. CHAMISA: Yes, but listen to my argument - [HON. MEMBERS: Inaudible interjections.] -  No shamwari, you know nyaya yaMutasa naMakombe.  Yes, we may not allow that, honestly, ngatiite zvinhu neprocedure  - [HON. MEMBERS: Inaudible interjections.] -  Hon. Chair, it is very important for us to all material respects follow procedures that are supposed to be followed within Parliament.  You are aware of previous judgments wherein Parliament was taken to court and certain decisions were vitiated on account of absence of procedure.  You asked members of the opposition to stand up and it is clear that that was not consistent with what is supposed to be obtaining.  You had already asked for us to indicate out alternative view, which we so did.

This is so important because it is an amendment of the Constitution.  We are requesting that there be a secret ballot  - [HON. MEMBERS: Inaudible interjections.] -   on each and every aspect.  Yes, we are kindly requesting a secret ballot because we know we have our colleagues who are so afraid of being terrorized and we want them to vote with us.  So if you may allow Hon. Chair, the constitutional rights of individual members to be permitted so we shall have a secret ballot at every stage  - [HON. MEMBERS: Inaudible interjections.] -  So that members who would want to vote freely but are under bondage are able to vote without any bondage.  Hon. Chair, we kindly request you to have a secret ballot on this one.

HON. GONESE:   On a point of order Mr. Chairman.  Thank you very much Mr. Chairman, I was really disturbed…

THE DEPUTY CHAIRPERSON:  Please be brief.

HON. GONESE:  Yes, I will be brief.  The point is that  - [HON. MAHOKA:  On a point of order Mr. Chairman!] – as Members of Parliament in terms of Standing Order No. 69, we have got privileges to debate as Members of Parliament.  As you are aware in terms of Standing Order No. 173, members may speak more than once to a question. 

We have got about 270 total membership of this august House and it is possible that all of them may want to speak in respect of any particular Clause.  I am disturbed Mr. Chairman when you say that we must deal with this amendment and conclude today.  I am not sure what the basis is, because that disturbs me a lot.  It then means our fundamental rights are going to be affected  - [HON. MEMBERS: Inaudible interjections.] -  Yes, it means that our fundamental rights, it is in terms of Standing Order No. 69 (d).  It means that our fundamental rights are going to be adversely affected if the Chair has the opinion that this amendment must be disposed of in the course of today because in terms of our Standing Orders, if we are allowed to debate until we have exhausted. 

We have got seven Clauses here and we do not know, we cannot preempt how many people want to debate.  For arguments sake, all Hon. Members in this august House may want to debate Clause 7 for example.  In that case, if we proceed on the attitude and basis that we have got to conclude today, then it means that our privileges and rights as Members of Parliament are being suppressed.  So, I just wanted to clarify that point so that we can be allowed to continue  - [HON. MEMBERS: Inaudible interjections.] –

*HON. MAHOKA:  On a point of order, thank you Mr. Speaker.  My point of order is that Hon. Gonese and Hon. Chamisa - [HON. MEMBERS: Inaudible interjections.] -  Hon. Gonese when they started speaking, they started by stating that they are lawyers and if indeed they are lawyers they started by pleading.  When you ask it does not mean that you will be given.  They have pleaded so we cannot continue listening to the same thing by two or so people.  What they are talking about does not help the country because we are tired of what they are doing here.  We cannot be held by these two people, we should listen to what the majority are saying out there.  What they are saying is rubbish …- [HON. MEMBERS: Inaudible interjections.] –

HON. P. D. SIBANDA:  On a point of order, Hon. Chair, the Hon. Member who just sat down is on record to have insulted the mover of this motion - [HON. MEMBERS: Inaudible interjections.] -  Why should she be allowed to  – [HON. MAHOKA: Inaudible interjections.] – Wakatuka Vice President ka iwewe!  Wakatuka Vice President ka iwewe!  - [HON. MEMBERS: Inaudible interjections.] –

THE DEPUTY CHAIRPERSON:  Order, order Hon. Members.  There is no provision for a secret ballot therefore we proceed.

HON. GONESE:  No, no, no Hon. Chamisa raised a fundamental point.  Sorry this is the last point that I am going to raise.

THE DEPUTY CHAIRPERSON: We agreed that was the last point you were going to raise.

HON. GONESE:  No, it is an important issue Mr. Chairman.

THE DEPUTY CHAIRPERSON:  Hon. Gonese please, no you cannot.

HON. GONESE: No please it is an important issue,

THE DEPUTY CHAIRPERSON: No, you cannot.

HON. GONESE:   No, no it is about the ruling Mr. Chair. –  [HON. MATUKE:  On a point of order!] -  He might want to take it on review.

THE DEPUTY CHAIRPERSON:  On review where?

HON. GONESE:  Mr. Chair, when an Hon. Member like Hon. Chamisa  – [HON. MATUKE: Chair, I do not think we can allow the Whip to abuse the House like that.  I do not think it will be fair.] -  No but you are the Chairman and there is only one Chair in this Committee of the whole House.  We cannot – [HON. MATUKE: But you are abusing the rules.] – No, no I am not abusing the rules. I will explain what I want to say if you can just allow me  – [HON. MATUKE: Inaudible interjections.] -  You are not the Chair and no, it is just a fundamental issue about the ruling.

THE DEPUTY CHAIRPERSON:  Please speak to the point.

HON. GONESE:  Yes, Hon. Chamisa made certain submissions and I think we need a formal ruling because Hon. Chamisa has got the right to take your ruling on review.  So we need your ruling in terms of the reasoning so that we know because if we want to a review.  Any ruling Mr. Chairman must be supported  by the reasons thereof because the issue of a secret ballot is fundamental.  He has given his explanation why he wants it.  So, I just want a formal ruling, giving reasons why you have declined that request so that if we now going to take it further…

          THE DEPUTY CHAIRPERSON: Order, order! Our Standing Orders as currently configured do not provide for a secret ballot on any matter being considered by the House.  Only the election of the Presiding officers is where voting by secret ballot is allowed.  So, my ruling stands.

          On Clause 2:

          HON. GONESE: Thank you Mr. Chairman.  In so far as I believe that clause No. 2 refers to in this Act, in other words, this Bill, if passed will become an Act of Parliament.  In so far as Members of Parliament on this side of the House are opposed to it, we do not believe that that particular part which says in this Act, then the rest that follows becomes superfluous if the Bill is not to be passed.  For that reason, Mr. Chairman, I object to that particular clause because it is already pre-supposing that we are going to pass this Bill which we are vehemently opposed to.

          HON. MAJOME: Thank you Hon. Chairperson.  I also rise to object to Clause No. 2 that is the interpretation section that describes the present Constitution as set  out in the Constitution.

Mr. Chairperson, I rise to say that possibly, I want to propose an amendment to this clause so and that if there to be an amendment, it should be the only amendment and that there be no other.  The only amendment that could be necessary in this Constitution is a renaming and a rechristening of the Constitution of Zimbabwe so, that this Constitution reads, ‘The Constitution of Zimbabwe’.

          It is my respectful view and I urge Hon. Members that if we must amend the Constitution, that is the only thing that we must amend, that is to christen our Constitution that came about from a process that involved people and that went to a referendum.  Therefore, I propose that if we are to amend the Constitution, to amend it only to end at Clause No. 2 by changing that clause to say that ‘Constitution means the Constitution of Zimbabwe as set forth in the Schedule to the Constitution of Zimbabwe No. 20 Amendment’, which will be hereafter named the Constitution of Zimbabwe and that should be the end of this amendment of the Constitution.

          THE HON. VICE PRESIDENT AND MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON.  E. MNANGAGWA): Thank you Mr. Chairman, the Constitution, this is an interpretation which will appear when this Bill becomes an Act.  It will read as this Act because it would have become an Act.  So, that is how it is crafted in terms of drafting legislation.

          The second issue raised by Hon. Majome, that this Constitution means the Constitution of Zimbabwe as set forth in the Schedule to the Constitution of Zimbabwe Amendment No. 20, 2013, that is the name of the Constitution which we are amending.  If she thinks that title is not proper, she is entitled to move a Private Members Bill to amend the Constitution. For now, we are amending the one which is in existence.

          HON. GONESE: Thank you very much Mr. Chairman.  Hon. Vice President, I have been looking at your memorandum and in terms of that, I have not seen the particular justification for changing the title of the Judge President in the Labour Court.  When you look at our current Constitution, in terms of the sixth Schedule, I think that there was broad consensus among the people of Zimbabwe and also the political parties that the status of our labour court judges should be elevated.  That is the reason why, in its wisdom, the Constitution Select Committee and subsequently this august House, in adopting the amendment of the Constitution, we agree that every person who previously was called a President of the Labour Court would then become a judge on the same conditions. 

Mr. Chairperson, on the same token, it was then agreed that the senior judge in the Labour Court would also be called the Judge President.  I want to understand from the Vice President, what is the harm in retaining the title of Judge President of the Labour Court?  To me, it would appear like you want to demean the status of the labour court judges if you do not accord them the same respect that you accord the person who is in charge of administration of the High Court.  I want to believe that the person who is in charge of the administration of the labour court should be given the same title as that given to the person who is also in charge of the administration of the High Court.  We should retain the title ‘Judge President,’ in the same way as it applies in the High Court.  I really want to understand and get an explanation as to why you want to change it.  For that reason Mr. Chairman, I am not in support of that particular amendment and I believe that you should retain the status quo and leave the Judge President of the Labour Court as a Judge President in the same way as it applies in the High Court.

HON. MAJOME: I thank you Mr. Chairman.  I also wish to raise an objection to Clause 3, which is an amendment that seeks to change the title of the Head of the Labour Court from that of being the Judge President to that of being called a senior judge.  Mr. Chairman, the reasons for my objections are in the Constitution.  It is my view that if this amendment to this Clause is allowed to proceed and be passed by this House, it would actually undermine the Constitution in no less than two ways. 

Firstly, Mr. Chairman, in terms of Section 188 (4) of the Constitution, the salaries, benefits and allowances of judges are prohibited by the Constitution from being amended while they hold the office concerned.  Currently, we have a Judge President of the Labour Court and using the literal rule of interpretation of statutes; benefits, as expressed in Section 188(4), would even mean a title.  A title is an expression of status and the power that an office holds.  Right now, to change the head of the Labour Court, who is the Judge President of the Labour Court to be a mere senior judge can be nothing other than the reduction of the benefit of enjoying the status and aura that comes with the title of the Judge President of the High Court.  That is nothing short of unconstitutional and for that reason, I object.

The second reason; I want to refer to Section 164 (2) of the Constitution, which is a clarion call to this august House.  I do hope that Hon. Members are paying attention and listening to what the Constitution says about what they must do when they are faced with any conflict between their duties and any proposal.  In this case Mr. Chairman, I have already explained that in my respectful and firm view, as alluded to by Hon. Gonese, changing that title is a demotion from being a Judge President of the Labour Court to being merely called a senior judge.  It is a diminution of the benefit of the status. 

In terms of this Constitution, Section 164 (2) (b) enjoins and requires Members of this august House to, I will read it; “The State must, through legislative and other measures, assist and protect the courts to ensure their independence and in partiality, dignity, accessibility and effectiveness.”  Mr. Chairman Sir, demoting a judge is a direct attack on the whole pillar of judicial independence.  If you demote, it is not allowed in this Constitution.  This House must not be complicit to undermine the authority of the judiciary by demoting a Judge President of the Labour Court to be merely called a senior judge. 

If this august House fulfills its duty as is said here, each and every Member of Parliament must assist and protect the courts to ensure their independence.  Demoting the Judge President of the Labour Court to a mere senior judge is indeed, the opposite of assisting and protecting judges in holding their independence. For that reason, I object Mr. Chairman.

HON. ADV. CHAMISA: Thank you Hon. Chair.  My debate is to implore on the Hon. Vice President to restore what is currently obtaining, that is the Judge President as opposed to a senior judge.  I have got two to three reasons why I am advancing this view and notion.  The first one is that, if you look at the change of name, it has a teleological and purposive effect to indicate that you are changing the purpose, the role and the stature.  This is not just a jurisprudential perception or perspective.

It also obtains even in the Bible; you know that when the role is changing from one to the other, for example the case of Jacob, he had to change to being called Israel.  Abram had to be called Abraham, it depicted and denoted a change in the function and purpose.  Now, when the Vice President and the Government choose to change the nomenclature, classification and taxonomy, legally of a judge in the labour court, what are we sending as an impression; which is what we experience everyday Hon. Chair as lawyers in the labour court?  The labour court is then viewed as a lesser court, a ‘zhing-zhong’ court and a court that is dispensing lesser justice.  It does not advance the objective we have seen being induced and infected into the Constitution. 

The spirit within the Constitution was to elevate the dispensing of justice at the work place to the level that is obtaining at the High Court.  It is so important to realise that the labour court is a court sui generis; it is in a class of its own.  It must be given sufficient teeth, stature and clout for it to dispense labour justice and workplace justice and equity.  Once you start doing this, you are now casualising labour justice at the workplace.  You are bastardising labour justice and it has an effect of subtracting from that stature. 

Hon. Chair, this is why I would kindly make my supplication to the Vice President to retain the Judge President and not just end there because the naming is the beginning.  We must also even in terms of our norming, begin to give the labour court sufficient attention, the attention that is given to all the other equivalent judges and offices within the High Court.  On this one, Hon. Chair, I do not think that it is advancing a positive and progressive image, particularly to the trade unionist and the workers in general.

This kind of an amendment is an anti-worker amendment and an anti-labour rights amendment.  I would like to ask the Vice President, being a worker of workers because the President is the worker of workers, to also be sensitive to the interests of workers and remove this because this is also against the liberation struggle’s ethos and values.  The liberation struggle was about workers’ rights, the people’s rights and when we begin to do this, we are now joining the capitalists’ oppressive and jingoistic tendencies.  This is my plea to the Hon. Vice President, let us abandon the temptation of following what Smith used to do for our people. I really beg you and this is my submission. Thank you very much.

          THE VICE PRESIDENT AND MINISTER OF JUSTICE, LEGAL AND PARLAIMENTARY AFFAIRS (HON.  E. MNANGAGWA): Mr. Chairman Sir, I appreciate the sentiments by Hon. Members who have just contributed. Let me just give the packing order of the courts in case they are ignorant about it. We have the Constitutional Court as the highest court in the Judiciary, seconded by the Supreme Court. We then have the High Court, which has the inherent jurisdiction. Below the High Court, we have the Labour Court which only deals with labour issues.

The High Court deals with both civil and criminal cases of all kind including labour. So, the Labour and the Administrative Courts are subordinate to the High Court. We have only one Judge President, but the most senior person who administers the Labour Court is called a Senior Judge of the Labour Court and others are judges. This is a request from the Judicial Service Commission which works out the packing order of their Judiciary structure. I thank you.

HON. ADV. CHAMISA: Since this is a school of wisdom, it is good for wisdom to be an osmotic exchange between the Hon. Office of the Vice President of Government and the Hon. Vice President of the Opposition. – [HON. MEMBERS: Hear, hear.]- Yes, - [AN HON. MEMBER: Wakasarudzwa here iwe?]- Yes, I was elected. The Hon. Vice President makes a very important revelation. He indicates that the Labour Court is supposed to be a lesser court, an inferior court. If there is no mischief, because that is what he said, what are we trying to cure? What mischief are we curing because at times we have to do things that are supposed to be addressing a problem? Why should we give you pills when you are not sick? Why should we give you betadine when you have no wound? What wound are we trying to cure?

It is not clear what wound we are trying to cure. If it is working properly, why should we send signals of relegation, signals of reversal of the gains of labour justice in this country. This is our plea to the Hon. Vice President who says it is coming from the Judicial Service Commission. Clearly, this is what is regarded as a gain by the trade unionist in this country. In the constitutional dispensation, that was their gain. We are seeing that we are subtracting from that gain and my plea again is to say Hon. Vice President, consistent with the ethos and values of our liberation struggle, let us be pro-worker, pro-poor and pro-people who fought during the liberation struggle. 

HON. E. MNANGANGWA: Mr. Chairman, I will be very patient with the Hon. Member and still attempt to have him understand that the Labour Court is a court of limited jurisdiction, while the High Court has unlimited jurisdiction. Currently, they are put at par. We are making sure and express that the Labour Court is subordinate to the High Court because it has limited jurisdiction limited to labour issues alone, as we have the Administrative Court. Below that, we have the Magistrates Courts and other small claims courts which are below. That is the packing order of the judiciary. I have no doubt that the Hon. Member is a lawyer; he should easily understand this simple structure of the Judiciary.

The Judge President of the High Court is the Judge President of the High Court which has unlimited jurisdiction, but the judges who are in the Labour Court, their head is Senior Judge who administers the Labour Court. This is what we are clarifying.

Clause 3, put and agreed to.

On Clause 4:

HON. GONESE: Thank you very much Mr. Chairman. I also have some reservations about the necessity for this amendment, but because the submissions are basically similar, I am not going to traverse the same ground twice. I just want to place it on record that I feel that this amendment is unnecessary in the sense that as the Hon. Vice President has explained, the Constitution is clear. I am very aware of the provisions of the Constitution. Yes, jurisdiction of the High Court is covered in Section 171 and it is very clear that the High Court has got inherent jurisdiction. That jurisdiction is not founded upon any Act of Parliament but it is actually inherent.

Be that as it may, the Labour Court and the Administrative Court on the other hand also have jurisdiction conferred upon them by Acts of Parliament. This is clearly spelt out in terms of Section 172 as it relates to the Labour Court and Section 173 as it relates to the Administrative Court. If the position is clear as the Hon. Vice President has pointed out, I see absolutely no reason why we should belabour this august House with this unnecessary amendment because we can still have in that Administrative Court, the person who is in charge of administration being referred to as a Judge President without taking away anything from the issue that the High Court itself, in terms of Section 171, as is abundantly clear to anyone who has an understanding of the import of the constitutional provision. I therefore, believe that for the reasons that we gave in terms of Clause 3 and those same reasons are applicable to Clause 4.

HON. MAJOME: I also rise to express my objection to the proposed amendment of the Constitution by Clause 4 and of demoting the head of the Administrative Court who is the Judge President, as it is very clear in Section 173 that its head is a Judge President. I object to demoting that Judge President to be called a mere Senior Judge. I object to that for the same reasons that I advanced in my objection of demoting the Judge President of the Labour Court to be called a mere Senior Judge. For the record, I want it to be placed that I object because it is in direct conflict of Section 108 (4) of the Constitution as it is reducing the benefit of status of a Judge President of the Administrative Court to that of a mere Senior Judge.

It also quarrels very badly with Section 164 (2) (b) which requires that instead of Parliament going around busy demoting judges and a Judge President of the Administrative Court, we must instead go the opposite way. We are required by Section 164 (2) (b) to instead assist, protect and enhance the independence of the courts. Once a person is liable to demotion, it really means that they are subject to the whims of whoever is advancing them or demoting them.

While I am there, I want to seek your indulgence in getting clarification from our esteemed Vice President who is the Hon. Minister of Justice. I am not sure whether I heard him correctly that if he seems to indicate that the present position is that the leaders of the Labour Court, which also applies to the Administrative Court are called the Senior Judge and then that is the case.  The question is, if that is the case, why are we bothering with Clause 4 and Clause 3 because then there is no need to amend it as it is already there.  However, in the event that he wants to amend it, I object respectfully but vehemently for the same reasons.  I thank you.

          HON. ADV. CHAMISA: When you said Hon. Vice President, I thought you meant of the opposition.  – [Laughter.] – So. I am really sorry about that.  But thank you very much, that is why I stood up. 

          Hon. Chair, I rise to support the view raised by Hon. Gonese and Hon. Majome that Section 173 already sends signals and messages of the importance that is given to these specialized courts such as the Administrative Court.  Once you begin to almost reduce them in rank, you are in effect weakening their importance.  This is particularly so important in the context of Section 68 of the Constitution, wherein access to administrative justice from a procedural point and also a substantive justice point of view, it is so important.  That court has been a very important court of late because of the entrenchment of the need to have administrative justice being followed. So, any effort to then try and send a message of putting lesser significance and emphasis on these courts is going to produce undesired and unintended consequences.  The unintended consequences are that you are going to end up with sub quality justice because you have already reduced the threshold of importance that you apportioned and allocated to that very important court.  I am very passionate about that view because when we consulted the people, they were very clear that they wanted an elevation in status and the kind of impression that is given to the Administrative Court.  So, it would be important to retain the title that is so obtaining Hon. Chair.  Thank you very much.

          HON. ZIYAMBI:  Mr. Chairman, what I want to say is that if you go through the Constitution in terms of judges and the hierarchy of the courts, you will see that the sections are not speaking to each other.  Where it talks about the High Court, it is a court which has inherent jurisdiction and the Supreme Court and the Constitutional Court.  Then it goes to the other courts which are specialised courts, which even if they want to make their own rules, they have to be provided for by an Act of Parliament.  Then if you look at these courts and you compare with the High Court, definitely from the Constitution, the way it is couched, they are not equal.  So, the mischief that is being cured is where the Constitution created an artificial equality which is not there because these sections were supposed to speak to each other where the Administrative Court is being given limited jurisdiction.  Its head cannot be equated to a head of a court which has unlimited jurisdiction.  If you also look at the way it is, anyone can even take his case to the High Court without even going to the Labour Court.  It is allowed because the High Court has inherent jurisdiction. 

You can even afford not to go to the Magistrate Court and take your case, if it is a civil case to the High Court.  That is allowed but you cannot recover your costs if you are a lawyer.  Therefore, what the amendment is trying to cure is that you have to have this hierarchy maintained, which is not the case in this Constitution. 

          THE HON. VICE PRESIDENT AND MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON.  E. MNANGAGWA):  Mr. Chairman, I will not be-labour myself with repeated arguments by repeated Hon. Members because I am puzzled how an Hon. Member who is educated can say that calling the head of the Labour Court Senior Judge is a demotion.  His/her conditions of employment are not being affected as they remain as they were.  What is being corrected is the perking order that the Labour Court and Administrative Court are subordinate to the High Court.  The Judge President is Judge President of the High Court and lower courts which report to him.  So, who is more senior to the Labour Court is a Senior Judge and who is more senior in the Magistrates Court is the Head of the Magistrate Courts.  That is the perking order which is from the Head of the Magistrates Courts to the Head of the Labour Court then the Head of the High Court who superintends over all these layers of the Judiciary down to the smallest court like the Small Claims Court.  That is what we are trying to amend.  It is not just a question of status in terms of their services, no. Their conditions of service remain and there is no question of demotion at all.  We are designating their correct titles guided by the levels and jurisdiction which they have in relation to the courts they preside over.

          Clause 4 put and agreed to.

          On Clause 5:

          *HON. MPARIWA: I want to start by asking the Vice President a question.  When he started answering the questions, I heard him saying that is what we are trying to rectify.  My first question is, if we look at the Labour Court and the High Court they were at the same level as it stands in the Constitution.  So, why are we now trying to undo what is in the Constitution because historically, that is how things were.  Cases were taken to court and they would take long to be adjudged and some people even died before they were judged.  In English, they say ‘justice delayed is justice denied’.  What would be wrong with leaving the Labour Court and the High Court equal as they were, then we just have the last court of appeal being the Supreme Court.  I would want to know what it is that has caused you to really want to make this amendment because we have a history behind the coming of the new Constitution which was reviewed at COPAC.  There were issues of judgments which were not made until people died and as a result, they were denied justice.  So, I want to know what we are fixing if we are retrogressing on what we did?  I thank you.

          HON. MAJOME;  I rise also to oppose Clause 5 which is the attempt by this amendment to subordinate the Labour Court as well as the Administrative Court to the High Court.  My reasons are that  this Parliament must not allow itself to go totally outside its mandate and do what is unconstitutional.  We are required by the Constitution to make sure that it is upheld and its principles, its spirit and in fact its letter is upheld. 

          If we go by this – I think it is a hazardous experiment with due respect, if we go through this and subordinate the Labour Court and Administrative Court to the High Court and then try to declare, it says for the avoidance that they are subordinates, then go ahead to provide that the salaries and allowances of those who are demoted to be judges that are lower than High Court judges, they remain the same.  Mr. Speaker Sir, I do not think that we would have done what we should do because it might be very well that for the judges who are sitting in the Labour Court or Administrative Court today in 2017, might not have their salaries and allowances changed but this amendment if it is passed in the way it is, it means that any judge that is appointed to either the Labour Court or to the High Court, after this Bill, if it is passed, ill-advisably and is gazetted; it means that those judges that come after actually are at  great risk and are certain of having salaries and conditions that are going to be inferior to those of the judges that are there today.

          Mr. Chairman, can you imagine a court that works with judges that are all called judges of the Labour Court and may be if they appoint more judges to the Administrative Court, that have two-tiers; those that came before this amendment was passed have their salaries, allowances and benefits that are very good and the ones that come after are going to have salaries and allowances that are inferior.  That will cause nothing but administrative havoc.  Also, it will be discrimination.  It will be an unfair labour practice that is prohibited by the Bill of Rights in the Constitution, Section 65 (1), which requires that everyone is entitled to fair labour practices.   Fair labour practices are not only for those who are employed but for all those who give their labour such as judges.  It will not be fair and therefore unconstitutional to have judges who are of different caste in the same court because that is what will happen if we pass this amendment.  

          Secondly, it will be a nightmare.  It will cause low morale to have judges receiving different salaries.  It should not be done by this Parliament.  This Parliament is required to pass laws for the order and good governance of Zimbabwe.  It will not be orderly and it will not be good governance to have courts and Labour Courts with judges that have different salaries.  You might very well start to be making the first recipe for possibly labour unrest and job actions in the courts if we continue to do what we are doing.

          I want to urge the Hon. esteemed Vice President to re-consider the implications of this proposed amendment that, is he certain that he wants to countenance in future judges that will have different tiers?  If it is the Judicial Services Commission that proposed this, I believe it is still the responsibility of this Parliament to reject such a proposal because this Parliament has a superior role to play in terms of Section 164 (2) (b) where we are required to do everything we can as Parliament to protect the independence of the Judiciary and assist it.  So, if the Judiciary decides to shoot down its own independence and suggests amendments that will get its internal cohesion compromised, this Parliament has a duty to assist and preserve its independence and maintain the status quo, which is what as we are today, the High Court, the Labour Court and Administrative Court rank what is called by lawyers, pari pasu.  They are at the same level and they are of the same status, even though the High Court has original jurisdiction.   The Constitution being the supreme law of the land decided to give those specialised courts equal standing with the other courts.  It is the Constitution that reigns supreme and we must respect that.  I thank you Mr. Chairman.

          HON. GONESE: Thank you very much Mr. Chair.  Just like colleagues who have spoken before me, I would also want to express my disquiet over this particular clause.  In saying so, I would like to draw the attention of Hon. Members to certain clauses which are in our Constitution.  First and foremost, I want to reiterate the import of the Sixth Schedule, in particular Section 18 (6), where it was made very clear that those who preside over Labour Court- if you recall Hon. Vice President, previously we did not have people presiding over the Labour Court and Administrative Court being referred to as judges.  They were referred to as presidents of the Labour Court and Administrative Court respectively.

          However, when we came up with the new Constitution, the people spoke loud and clear that they wanted those presiding officers to be equated to and to be at the same level as judges of the High Court.  As a result, Section 18 (6) became part of our Constitution.  More importantly, when we look at the qualifications of judges, I agree with the Hon. Vice President.  When we look at the hierarchy of our court, the Constitutional Court is the apex court.  It is the one which is at the top.  In terms of qualifications, it requires someone who has been entitled to practice as a legal practitioner for at least 12 years.  For the Supreme Court, it is 10 years.  When it comes to the High Court, the Labour Court and the Administrative Court, the qualifications are the same.

          Previously, that was actually one of the arguments which was being used why there was a differentiation between those judges when in fact for you to qualify to be a judge of the High Court, or Labour Court as is now called, the qualifications are the same.  Since the qualifications which are in the Constitution are similar, it is important for us to maintain that position of equality.

          I have no qualms with the issue of the High Court and I would like to reiterate that I appreciate that the Labour Court is a specialised court. It deals with labour matters and any other powers which may be granted to it by an Act of Parliament.  Similarly, that applies to the Administrative Court.  I believe, as my colleagues have pointed out that there are times when perceptions can be very important. 

I want to draw the attention of Hon. Members to an incident which occurred when one of our Hon. Vice Presidents, in particular Hon. Vice President Mphoko took offence to be referred to as the second Vice President because there is no such creature in our Constitution.  In terms of our Constitution, the two Vice Presidents are the same because there is no reference as of now to first and second.  It will only come into effect in 2023 when we have got the issue of running mates.  I want to point out that there are times when perceptions are very important and sometimes they can be more important than reality.  The import of this amendment is to appear like we want to – not really demote them but in terms of the perception, it would appear that they are lesser than their counterparts who hold the same qualifications.

          I would also want to seek some clarification from our Hon. Vice President Mnangagwa as to the import of sub-clause 2 because first of all, when we talk for the purpose of Section 171 and you say ‘for the avoidance of doubt’, you say that the courts are subordinate to the High Court - for me, it is something which is implied in terms of the Constitution.  There is no need to put that for the ‘avoidance of doubt’ because it is actually implied.  We all agreed that the jurisdiction which the Labour Court enjoys is different to the special jurisdiction conferred to the other court.  For that reason, I do not see any reason why you want to put that particular clause.  More worrying for me, is the import of sub-clause 2 which says that, yes, the allowances and other benefits of judges of the Labour Court cannot be reduced but it gives the impression that there might be differentiation and I want that clarity.  Is there a future time when there might be a differentiation, because when we adopted the new Constitution, we equated those judges to be at the same level?  Does this clause envisage a situation where for instance, the salaries and perks enjoyed by judges of the High Court may be increased whilst those of the Labour Court judges remain where they are?  I just want to have that understanding so that we have a clear understanding as to whether there may be envisaged a future occasion where they might that difference.  I think that would be unfortunate and will fly in the face or against the spirit and the letter of Section 18 (6) of the Sixth Schedule.

          THE CHAIRPERSON (HON. MARUMAHOKO): Hon. Majome you did debate before.

          HON. MAJOME: Thank you Mr. Chairman.  I forgot something but I realised that in terms of Standing Order No. 173, at Committee stage I am allowed to rejoin.  I had forgotten Mr. Chairman and I thank you for indulgence.  I urge the Hon. Members and the Hon. Vice President to look at clause 5 in particularly sub-clause 2; its wording. 

          Mr. Chairman, where it reads that for the purpose of this section and section 171 (b), “it is declared for the avoidance of doubt”.  I rise to say that and I had forgotten to say that this is without precedence to have a statute, an Act of Parliament that is couched in words that say ‘it is declared’.  I have never certainly seen it before in my 21 or so years as a legal practitioner and indeed as a Member of Parliament, we have never legislated and passed any Act/enactment that has the words ‘it is declared’.  It is not normal for Parliament to go around declaring things.  Parliament has authority, it legislates, if it passes something, it says what it says.  For you to then say, ‘it is declared’ for the avoidance of doubt, this indeed sounds alien and it does not sound like good law.

 I would urge Hon. Members because I do not want this Parliament to go down in history as having done things that are never done before; it is inelegant and it does not look right and sound right.  Why is Parliament declaring anything?  If Parliament wants to pass something, let it just pass it.  Why are we suddenly declaring things?  It is as if we do not believe in our own authority, but possibly we are declaring because we know that what we are proposing to amend is not right and is not constitutional and should not be done.  Maybe that is why we are seeking to declare.  I thank you. 

Hon. Chamisa having stood up to debate – [HON. MEMBERS: Inaudible interjections.] -

          HON. ADV. CHAMISA: Thank you Hon. Chair.  They are people who do not understand that the Vice President is a very patient man.  You know he has shown his patience and is very patient.  We all know that.  You know what has happened in the country, he is very patient, I admire his patience. – [Laughter.] - So, I know that he will appreciate what we are trying to drive at. 

          THE CHAIRMAN: Hon. Chamisa, please.

          HON. ADV. CHAMISA:  Hon. Speaker, when I look at section 174, it is very clear that the emphasis on the ‘for the avoidance of doubt’ carries with it a sting and some mischief in it.  Once you say for the avoidance of doubt, you are trying to say to people whom you believe or perceive to be disagreeing with you, this is what I am saying regardless of what you think or what you are saying.  That is the net import of ‘for the avoidance’ of doubt clause.  This is very sad particularly when has regard to the gains of labour rights in terms of Section 65, particularly in terms of how the perking order and ranking of our courts is structured.  

          Clearly, this is a serious blow to industrial harmony.  It is a sad day for the gains we have made as a people.  Why do I say so and this is why I am really making another passionate plea to the Hon. Vice President to reconsider the couching of these sections, particularly Section 174.  What is clear is that it betrays an inarticulate measure premise, the hidden motive.  The hidden motive is to mimic and portray a change in the base in terms of the ownership of the means of production.  The liberation struggle was all about the working peoples’ rights.  The liberation struggle was all about making sure that we deal with the lowest of the low.  The liberation struggle was all about the rights of the working people in the industries.  If you look at this kind of a clause, it is reflecting the change in the superstructure, because there has been a change in the base in terms of who owns the means of production, particularly in terms of the ruling class.

          So, it has a danger in it.  We may not see the language, we may not see the motive but the motive and the sting in it is going to affect and undermine the gains of our liberation struggle.  I cannot claim to be a custodian of the liberation struggle, but I am a defender of the liberation struggle.   I believe that those gains we have made in the liberation struggle cannot be undermined under our watch, particularly as Parliament.  I want to do this on behalf of those who are dead, who are not able to come and debate in this Parliament.  I have a duty to represent the many heroes and heroines who would have wanted to see the gains of the liberation struggle being defended and being advanced. 

          This is why Hon. Chair, I would urge the Hon. Vice President to rethink  - Section 174 (2), in the context of the issues of differentiation of salaries and working conditions for the judges in the Labour Court, Administrative Court and the High Court.  Why do I say that?  I say that because the way that clause is couched is such that it does not prohibit differentiation, it only speaks to issues of equalization in terms of those who are currently serving.  In terms of the new arrangement and any other dispensation that is going to arise out of our circumstances in the future, you will then see that they would be a differentiation between the judges in the Labour Court, Administrative Court and the High Court. 

It puts paid to the argument that has been advanced by other colleagues here to say the Labour Court is not as important and it is supposed to be subordinate.  There is the judgment by J. Bhunu to the effect and that has now been practiced in the courts that you cannot take a labour matter to the High Court in as much as it is a court of jurisdiction, you have to go to the Labour Court.  So, why should we undress the Labour Court?  Why should we go there and make the Labour Court naked?  Why do we want to see the Labour Court without the sufficient muscle and authority that is important for dispensing industrial harmony and workplace peace and justice?  Hon. Vice President, I know you do not normally listen to your young men but please listen to the wisdom of a young man, for once it will matter – [HON. MEMBERS: Hear, hear.] – For once it will matter and I know that you will see the wisdom of young age.  You always say young people are not custodians, repositories or reservoirs of wisdom.  However, on this one - accept that the young ones seem to carry the wisdom that will help the older ones, for the good of our country.  Thank you very much.

          THE VICE PRESIDENT AND MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. E. MNANGAGWA):  Mr. Chairman, Hon. Member Hon. Mpariwa who first debated, I would want to help her that on the workers, nothing has been taken from them.  The workers are the reason why we went to war so that we protect them.  We are the ones who put the law in place, and you know it as we were together in Cabinet protecting the rights of the people through the ZANU PF Government.  So you should support because it really supports the workers.

          The issue here Hon. Mpariwa is that, the Labour Court is only looking at the rights of the workers.  The High Court will touch everything with the inherent jurisdiction but the Labour Court has been given a portion of the judicial system.  That is why we want it to be differentiated so that they are the High Court and lower courts but, the judge who will be in the Labour Court has the same conditions with the judge at the High Court.  The only difference is that, that one at the Labour Court has a limited jurisdiction but the one presiding at the High Court has unlimited jurisdiction.  That is the only difference.

          To the colleagues of mine, there is nothing much I can add because they are dealing with perception.  Fortunately, I am dealing with concrete issues and not perceptions.  This is the difference which is there and will continue with concrete issues which we are amending and we are making it express in the same manner like when we passed the Judicial Laws Amendment Bill which we passed here.

In that Bill, we declared that the Electoral Court, the Fiscal Court et cetera, are divisions of the High Court.  It is making it express and we leave no room for doubt.  This is what we are doing – improving so that people understand that we have made an express declaration.  So it is concrete and not perception.  This is what is happening and the rest of the contributions by other colleagues, it is repetition.  I am not used to repetition but I only state facts as they are and are concrete.  If you are in doubt, you continue to refer to the Hansard.  I thank you.

          HON. ADV. CHAMISA:  Hon. Chair, thank you very much.  I would kindly propose to the Hon. Vice President because he did not quite respond to Subsection 2 and I must say, some Members may feel that we are trying to be stubborn.  We really want to try and help ourselves as a people and this is why we make some of these contributions.  We may be wrong but this is why we have this deliberative House – to have a cross pollination of ideas and we must celebrate that.

          Subsection 2 of 174, is it not possible for us to then abandon the reference to the salaries not being reduced to the element of them not being differentiated.  It is a proviso where we are saying provided that they shall not be differentiated because once we have done that, it clears the air Hon. Vice President because the reduction has the effect of speaking to the commencement – so you are not going to reduce but you are not addressing issues to do with increments, promotion or other things. 

So, let us just have a capping Clause so that at least we are able to make sure that there is no differentiation.  Once we do that, Hon. Vice President, I will definitely make sure that whatever effort that you want me to help you with, I will help you and you will succeed Hon. Vice. President.  I mean in this Parliament.  Thank you very much.

          HON. E. MNANGAGWA:  Again Mr. Chairman, I wish to state that in fact there was no need for us to say that the conditions of service are that their salaries will not be affected.  There was no need – it would have been left but to be express, we have said so.  I am not going to deal with speculation that this might arise and this might arise – let it arise and we will deal with it.

          Clause 5 put and agreed to.

          On Clause 6:

          HON. MISIHAIRABWI-MUSHONGA: Thank you very much Chair.  I take cognisance of the comments that the Vice president gave.  I listened quite intently when he responded to the issues that we had raised during the Second Reading, save to say like my colleagues that one of the reasons why we keep raising these issues is that history will judge us for the things that we would have said during that time.

          There were issues that were being raised Mr. Chairman about the fact that we are doing this because it is law.  I think the one thing that you learn during first year at law school is that law is law but it being just or being unjust is another thing.  So that this law is there is not in dispute but the fact that it is unjust is the issue that I would want to raise and I want to underline the issues that we raised during the Second Reading.  The Vice President raised it and the Chairperson of our Committee also raised it.  The issue is not necessarily questioning whether there is merit in what the Vice President is saying that, let us change the way the judges are appointed. 

The question is, how do we vaccinate against abuse of power if we do give it to one individual?  The Vice President raised an issue and said, when some of you were debating here, you kept creating impressions, perceptions or issues that were not right in that you were saying that in other jurisdictions what you are finding is that, there is always an interview process for the Chief Justice and for the Judge President and I agree with him. 

However, I think we must also agree that what you find in most jurisdictions, including the United States of America that our other Members were bringing is that yes, the President may have a right to appoint but there is always something that vaccinates against this person being the ultimate authority in doing so.  For example in the United States of America, you will then have the Senate coming in.  So, all we are saying is that, yes we agree Vice President, you know that some of these things have already gone through and you have the numbers and you have put them through but please, consider the fact that we may have somebody who is an idiot and a lunatic coming into power.  Are you really comfortable with that you would want to give this person the ultimate authority to be the person who appoints without any other example that those appointments will be brought to the National Assembly.

Some of us are prepared to even go into that compromise but I think what gives some of us sleepless nights and I said it to the Vice President, not just myself but even him, is that if you had somebody who is after him and judiciary that is so partisan and political, will you be able to survive it. Does he really think we should just have this ultimate authority? That is why I am requesting. Somebody said they saw Hon. Gonese begging. We do beg because this is about our lives and what is likely to happen to our children, and to ourselves. I do not want to wake up tomorrow and have somebody who believes that their only appointing authority is this person and therefore will do whatever they want. Somebody who can wake up and say their wife is now Chief Justice and therefore can do whatever they want in their bedroom. Do we really want that Hon. Vice President?

All I am asking is that give me just a little bit. I do not care what it is but give me something that will say this person does not have ultimate authority. Like I said, if you check in all jurisdictions, they do have at least something that gives the checks and balances on this. Not that I am agreeable to all the other amendments but I am now begging because I was quiet all along. This one frightens the hell out of me because I keep thinking if a mad person comes into power, we are in serious trouble including him.

HON. MAJOME: Thank you Hon. Chair for allowing me an opportunity to debate. I suppose the most impetuous part of this Bill that is proposing to centralise all power of judicial appointment of the top three judges in the country in one person, that is, the Executive President.

Mr. Speaker, I also rise to implore the Hon. Vice President to think and rethink, and in fact desist from proceeding with this centralisation of power. I say this because right now, since 22nd May, 2013, ordinary members of the Zimbabwean public, me included, have enjoyed democracy. We have enjoyed participating in the selection of the top most judges in the country because the provisions right from head of judiciary, Chief Justice, Deputy Chief Justice and the Judge President. We have enjoyed this jointly with His Excellency the President. The President has been enjoying the same powers as we have in nominating people as judges. I will not say the same because clearly the President has much more power.

As it is right now, because we could also apply when vacancies arise, as the Constitution stands now before this ill-advised amendment. If a vacancy arises in the offices of the Chief Justice, Deputy Chief Justice or the Judge President of the High Court, the Judicial Service Commission conducts a very democratic process where it announces that there are vacancies and invites nominations from people like me, a member of public although I am a Member of Parliament. His Excellency the President will also put forward a name or two names or as many names as he/she wants to put in the hat. The Judicial Services Commission is empowered by the Constitution to select a person by merit and even as a member of public or Member of Parliament, I have enjoyed going to sit at Rainbow Towers and watch interviews of judges being conducted, and after also participating and following the process.

          Now Mr. Chair, this amendment that is proposing to cut-off the Chief Justice, Deputy Chief Justice and the Judge President is going to deprive Zimbabweans of an opportunity that they have to democratically participate in the governance of their country and centralise power for no rational reason in the Office of the President. The President already enjoys power to select a Chief Justice, Deputy Chief Justice and Judge President. He enjoys a lot of power and to actually increase it and cut out everybody else in my respectful view, is neither helpful nor even necessary because as matters stand now, the Judicial Services Commission will also consider choices by the President that are nominated. If the President is unhappy with the three names that are selected by the Judicial Services Commission after short listing, the President even sends them back. To me, this is actually a cue for the Judicial Services Commission if they have omitted the President’s nomination to put it in there so that the President can appoint from there.

          Mr. Chair, there is absolutely no reason to overload and concentrate that on the President. I want to propose that we abandon this idea. Can you imagine if His Excellency the President were to come to the National Assembly and choose the Speaker of Parliament for us. That cannot be countenanced. So, why should it be done for the Judiciary? Why would the Office of the President require appointing those three judges exclusively by itself? What is so wrong with the people of Zimbabwe for them to be deprived of a chance of nomination?

          Allow me also to say something that I have wanted to say. This amendment is not at all being made in the interest of the people of Zimbabwe. It is not in the public interest for power to be centralised in the President and for the public to be deprived of an opportunity to also have a hand in the appointment and selection of the Chief Justice, Deputy Chief Justice and the Judge President.

I also want to express my concern Mr. Chairman and say some words towards the Attorney-General of this country. In terms of the Constitution Section 114, our Attorney-General is not only the Chief Legal Advisor to Government but they are the ones that also draft legislation. Section 114 (4) (d) requires that the Attorney-General, in all his or her duties must “promote, protect and uphold the rule of law and to defend the public interest”. Mr. Chair, this is attacking the public interest. The public has an interest in knowing and selecting the Chief Justice, Deputy Chief Justice and a Judge President. What the Attorney- General has done is to draft an amendment. My hope would have been that the Attorney-General advises the Government that if it wants to do this, it is not in the public interest because why would the public surrender an opportunity it has; that it be left only in the selection of the other lower judges that are not here. This is not in the public interest.

I do hope, because again in terms of the Constitution, the Attorney- General may also sit and speak in the National Assembly. I have never seen our Attorney-General here and they are even not present here. This is the first amendment to this Constitution that has been proposed but the Attorney-General is not here. I do note that the Deputy Attorney who is in charge of drafting is here but where is the Attorney-General of Zimbabwe – [HON MEMBERS: Hear, hear.] – The Attorney-General must come and visit us in Parliament, and listen to this debate because this is an earth shaking and country shattering amendment. If the Attorney-General is too busy with other issues, but today during the debate of this first constitutional amendment, the Attorney-General should be here listening to this process – [HON MEMBERS: Hear, hear.] – and I would want the Attorney-General to hear that they are not performing in terms of Section 114 (4) (d). They are not defending the public interest.

This amendment is an attack on the public interest. The public should continue to be able to participate in the selection of the Chief Justice, Deputy Chief Justice and the Judge President. This amendment is not doing that at all. If the Attorney-General is not going to come and defend the public interest, this House must defend the public interest. This House must step in, defend it and promote the independence of the Judiciary and the public interest. This concentration of power in the Head of the Executive is not in the national interest.

Allow me Mr. Speaker to just quote from one of the classical scholars of constitutional law and the rule of law who was a French philosopher called Montesquieu. He said this, “when the legislative and executive powers are united in the same person, there can be no liberty. Again, there can be no liberty if the judicial powers are not separated from the Legislature and the Executive. Were it joined with the Legislature, the life and liberty of the subject would be exposed to arbitrary controls for the judge would then be the legislator. Were it joined to the Executive” which will be the case if the President is the sole authority for choosing the Chief Justice, Deputy Chief Justice and the Judge President,  “were it joined to the Executive, the Judge might behave with violence and oppression.  There will be an ending to everything where the same man or the same body, whether of the nobles or of the people was to exercise those three powers, that of enacting laws, the public resolution of disputes and that of executing”.  Concentrating the power to appoint the chief justice, the deputy chief justice and the judge president in the President is to give the Office of His Excellency, the President the power to do this.  This is contrary to everything that the rule of law stands for and good governance and separation of powers. 

While we are there Mr. Chairman, in opposing this, I am really imploring on our esteemed Vice President who is also the Minister of Justice to please abandon this amendment that is not in the public interest.  In pleading with him again, I will implore him to look at how, at the present moment, at the time that this amendment was being proposed, there had not yet risen a vacancy in the office of the Chief Justice and then it arose.  As we are debating this amendment, the very first vacancy for the office of the Chief Justice that arose when we enacted this Constitution was filled with no difficulty at all, in terms of this Constitution.  That shows that it works.  We have a Chief Justice now called Chief Justice Malaba who was elected and came into office in the manner that is spelt out in the Constitution.  I have not seen any problem at all.  Where is the problem?  There were no hiccups and there was nothing wrong with the process.  The process concluded and we have a Chief Justice in this country, in terms of the Constitution.  There is no mischief and there is no problem.  Like lawyers say, the Hon. Vice President will agree, if it is not broken, why fix it?  There is nothing wrong with the Constitution as it is today.  That office is filled.

While I am there, I also think we forgot to do something, that is pay homage to the memory of the late former Chief Justice Godfrey Chidyausiku.  I believe it would be remise to debate without even just – I do not have the authority to ask for a moment of silence, but I want to believe that we should have done so and pay respect.  He has sadly passed on but that issue pertains to the filling of that office.  I say this Mr. Chairman, that I do want exhort our Hon. Vice President that he may very well have harboured some concerns and some anxieties about how this might not work as it was being done.  Now, I want to hope that he can abandon all those fears because the process has shown that this process works, it has worked.  So there is no need for us to proceed with this amendment because it has worked.  We have a Chief Justice vacancy that was filled – the very first one.  It was filled in terms of what is being proposed to be amended.  There is just no reason to do this.  Instead, let us spend our constitutional legislative time in doing other things that will implement the Constitution and not to change this.  It is not broken, we cannot fix what is not broken. 

While I am there Mr. Chairman, in terms of Clause 6 (7) (2), from lines number 13 to 15 of the Bill, it reads “for the avoidance of doubt, it is declared”, declared again and I am averse to “declared” but I give way to spear wisdom, “for the avoidance of doubt, it is declared that the amendment to the Constitution made by (1) applies to the appointment of a Chief Justice to fill the vacancy in that office that exist on the date of commencement of this Act”.  That is also very unusual.  It is unusual for a Bill to also refer to a specific point in time but it makes sense only in the sense that when this Bill was conceived and initiated, there was an impending vacancy in an office.  That vacancy is no longer there and even for other Bills that we pass, we do not ever indicate that it shall happen to fill a vacancy that exists on the date of commencement of this Act.  For me, this is evidence that this Bill has been overtaken by time.  There is no need to proceed with this because even if we were to do it, what would we say about sub clause (2), what would it mean?  It would perplex people to know. 

Mr. Chairman, allow me to end by imploring again the Vice President that can we abandon this process.  We have a system that works.  Any fears that may be, may possibly be resolved by practice directions or other things but there is no need to centralise the appointment process of the Chief Justice, the Deputy Chief Justice and the Judge President in the President.  We have a system that works and let us leave it at that.  I thank you.

HON. ZIYAMBI:  Thank you Mr. Chairman.  First of all, I would like to say that, a President is elected by everyone in Zimbabwe.  When a President is elected, he is given the mandate by the people; if people elect an idiot, that is one of the consequences of democracy, you have to live with it.  Americans, they say they elected Donald Trump and for the next four years, they have to live with him.  In the Constitution, the President is elected by the people.  So, these anxieties and perceptions that there will come an idiot – a person is elected by the people and the authority to govern comes from the people.  The problem comes when we start equating a nomination process with an election.  This Constitutional provision about the Chief Justice speaks about nominating ...

HON. ADV. CHAMISA:  On a point of order.  Mr. Chairman, Hon. Ziyambi has made a very strong statement and has made reference to Mr. Trump of the United States of America and about idiocy.  He has also made mention of the President, we want to be very clear.  Are you saying the President is an idiot or you are saying that is – [HON. MEMBERS: Inaudible interjections.] – No, no, no.  We do not want people who just throw things around, what is he saying?  Hatidi munhu anongotuka President. President havatukwi-tukwi.

THE DEPUTY CHAIRPERSON:  Order.  There is no point of order.

HON. ZIYAMBI:  Thank you very much Mr. Chairman.  When this was mentioned, they never complained.  When it was referred that maybe in future, a President may be elected who is an idiot, I never heard anyone complaining.  When I made reference to the future that somebody may be elected, I hear noise.  The point that I wanted to say is, democracy dictates that you respect the wishes of the people.  Whoever is elected by the people and power is bestowed on him, you have to respect that.  That is very clear.

The process of appointing a Chief Justice that they are clamouring for is only nomination not power that is vested by the generality of the people.  So there is a misconception that is being peddled that by giving the authority to the President, you are taking away the power from the people.  That is not the position.  However, I want to go to Clause 6, the new section 180 (3).  Firstly, I would like to say, I concur with what Hon. Majome has said that, we have never seen the Attorney-General in this august House.  I think it is a misnorm.  While the Deputy Attorney-General comes when Bills are presented, we applaud him but the Constitution and our rules specifically implore the Attorney-General to come.  I think and I believe that he should attend.  I say so looking at Section 180 (3) that talks about the appointment of a Chief Justice, the Deputy Chief Justice and the Judge President of the High Court, “if it is not consistent with any recommendation made by the Judicial Service Commission, in terms of sub-section (2), the President shall cause the Senate to be informed as soon as is practicable.  It goes on to say, “provided for the avoidance of doubt, it is declared that the decision of the President, as to such appointment shall be final”.   I believe the drafters did a bad job of it. There is no need to inform the House if there is no action to be taken. Surely, if there is need to inform the Senate then the Senate should be given power and responsibility to do something. If we have a clause that refers to a referral and that referral does not then state what the power of that House is, it becomes very difficult to see what it is trying to achieve.

          In that regard, the Hon. Vice President might need to reconsider that position to say that if you look at most jurisdictions, where there is a referral, that House or that organ acts in a particular manner. In this case you do not find what it is supposed to do. Regarding Clause 6, we need to seriously look into that. Either we remove it altogether or we do something to state that the Senate will do 1, 2, 3 and 4. I thank you.

          HON. MARIDADI: I am a bit concerned. The Constitution of Zimbabwe came into being after a very elaborate process and this Constitution is a very progressive document. You can talk of the American Constitution, South African Constitution but the Zimbabwean Constitution is very progressive. One Hon. Member stands up to say that if Zimbabweans elect a President then you live with that President for the next five years indeed. Why do we have a Constitution? The Constitution is so clear on the State and how the State must function - separation of powers. It is for purposes of checks and balances that we have those three arms of the State. We have a Judiciary which is a stand alone, a Legislature which is a stand alone and we have an Executive which is also stand alone.       The reason why we have never spoken about the President appointing a Speaker or having anything to do with the appointment of the Speaker is because the issue of separation of powers is sacrosanct. You cannot tamper with it.

One thing that I would like to urge Zimbabweans and Members of Parliament, both sides of the House, when we speak about the President, let us separate between the incumbent President and the presidency, the institution. When we talk about the President of Zimbabwe and we are debating amendment of the Constitution, let us not talk about the President with President Robert Gabriel Mugabe in mind. Let us talk about the Office of the President as an institution. We have lived with President Mugabe for the past 37 years and we know what he can do and what he cannot do. I am actually very encouraged because the President allowed the current Chief Justice to be appointed using the process which is in the Constitution – it is because the President as a lawyer and as a person who has been in politics for as long as we can all remember, he recognises the importance of the Constitution and he knows that the process that is in the Constitution works. That is why he was able to apply it.

          What we are saying is that the President, soon after using a process which he knows works, we are saying no the President should not have used that process which he knows works; let us now amend this process. The reason why there is all this debate from Members of this House, I and myself in particular want my son later on in life to then be able to carry the Hansard and say baba vangu vakazviramba izvi. This process does not work and my father stood up in Parliament and he said no to this process. That is the only reason why I am standing to debate . I know this amendment will go through because we are not in the majority – [HON. MEMBERS: Inaudible interjections.] – I can count from 1 to 397 and I know ZANU PF has a majority in this House. When it comes to voting they will be able to mobilise two thirds majority and this will go through. I know that. Hon. Majome and Hon. Misihairabwi-Mushonga know that this amendment will go through.  The reason we are debating is that we are putting it on record that we have said no to this process. That is the only thing that we are doing. History judges us by what we have done. If we are not careful, our children will spit on our graves to say you were in Parliament for five years and you allowed this deformity to go through; what were you doing?

          I then want to come to what Hon. Ziyambi said. I am thankful for his wisdom.  The reason why the Attorney General is not here is because the Attorney General knows that ZANU PF has a two thirds majority, so it will go through. The Attorney General should have been here to defend this because he is the person who give advice to Government. He is the architect of this amendment. He gives advice to the President and the Vice Presidents. He should have been here to defend the advice that he gave to the Vice President. The reason why he is in his office and saying allowing those fools in Parliament to make noise because he knows there is a two thirds majority in the ruling party, so it will go through. We cannot allow that to happen. He must come and subject himself to this Parliament and to this debate.

          The Judiciary and Parliament are two pillars that people out there have to protect them. If you take the power of those two pillars then you concentrate all the power in one man, that man in future could be - I have said this as James Maridadi. What will stop James Maridadi from going to my father-in-law’s house and appoint my brother-in-law as Attorney General, go and appoint my wife’s sister as Chief Justice, go and appoint my neighbour’s son as Judge President and appoint my friend? People with qualifications that are lawyers with the prerequisite experience, but because it is concentrated in one man, there are no checks and balances. The reason we have a Constitution is so that we have checks and balances.

          The President cannot go and declare a war without coming to Parliament. He will have to come to Parliament and subject himself to the debate of Parliament and state the reasons why he declared a war. If Parliament is not happy with the reasons that are given, our soldiers will be recalled to come back home. I urge Hon. Vice President that in the name of the Almighty, we have put this on record because we do not want our children and their children to come and defecate on our graves. I thank you.

          *HON. MAONDERA: I spoke to people that I am representing over the weekend, that is people in Glen Norah and they sent me to ask the Vice President if this amendment that is taking place has anything to do with ZANU PF succession plan. They also asked me to again ask if this amendment – [AN HON. MEMBER: Unorwara.]- If we talk about illnesses then we will say a lot of things. If we want to talk about the sick then …

          HON. MUNENGAMI:  On a point of order Hon. Chair.  It is very unfortunate Hon. Chair that we have got a Member of Parliament who represents a constituency, who comes here and says “usataure zvaTsvangirayi anorwara.  Honestly, as you are sitting there as the Chair, you just ignore it as if it is normal business – [HON. MEMBERS:  Inaudible interjections.] -  At the end of the day Hon. Chair, if we really want to start talking about sick people, we might not end up doing things the proper way.  I think it is in the best interest of this Parliament for the Hon. Member to withdraw his statement and at least we move forward.

          THE DEPUTY CHAIRPERSON:  Order, order!  Unfortunately, I did not hear that. 

          HON. MUNENGAMI:  The reason why you did not hear it Hon. Chair is the reason why we are now telling you so that at least you know exactly what happened.  It is very unfortunate.  He is running away and you are saying you did not hear it.  It is not fair.

          THE DEPUTY CHAIRPERSON:  Hon. Pedzisayi, before you dash out, resume your seat – [HON. MEMBERS:  Inaudible interjections.] – Order Hon. Members.  If you continue, I will let him out.  Hon. Pedzisayi, did you make such remarks? 

          *HON. PEDZISAYI:  Hon. Chair, I did not say that he is sick and he is going to die.

          *THE DEPUTY CHAIRPERSON:  We will check our audio recordings to find out whether you did not say those words.

          *HON. MAONDERA:  Hon. Chair, I want to ask Hon. Members a question.  How many of them went back to ask the people whether they want this amendment or we just come to this House and talk from our heads without asking what the people want.  This law was voted for by the people during the referendum. If we come here and think that what we want is the best and not what the people whom we represent want - what does it mean? 

Secondly, it looks as if we are not in agreement. If you look at the other side, you find that there are a lot of empty spaces, which means that Hon. Members from the other faction are not agreeing. So, if you look at the people who are seated, they are from the Lacoste because all the G40 members have gone out. 

THE DEPUTY CHAIRPERSON: You are out of order Hon. Member.

*HON. MAONDERA:   Thank you Hon. Chair.  What I want to be clear is that when we come here, the salaries that we get come from the taxpayers, so we should do the will of the people.  It is not surprising Hon. Chair that if we go back to each and every constituency asking people …

*THE DEPUTY CHAIRPERSON:  Hon. Member, we are looking at Clause 6, so I think we should concentrate on that clause.

*HON. MAONDERA:  I was just giving an example that Clause 6 is very important because it touches on the lives of people.  So, I am saying before we amend these clauses, we should not repeat what happened when we passed the Sovereign Wealth Bill which was returned.  We ratified another agreement which was returned.  Have we really put our minds to say this is what we want so that we will not put ourselves to shame that after taking this Bill for assent, it is returned because the President has refused to sign.  This has happened before.  So, I am saying we need the assurance to say we are in agreement that this is what we want so that tomorrow we will not be ashamed. 

Right now, we have a law on the Order Paper which was returned by the President because he was not happy although this House had agreed to it.  In short, I would want to say let us not just do things for the sake of doing them without thinking deeply.  I am sorry that some people who are urging me to sit down performed badly when they were Deputy Ministers, so I think that they should keep quiet.  Let us really look at this law that we are amending so that tomorrow we will not be ashamed.  Thank you. 

*HON. MATAMBANADZO:  Thank you Mr. Chair for this opportunity that you have given me to add my voice on this Bill that is giving us challenges.  This Bill is a challenge because we want  to empower our President to appoint the judges and the opposition is not in agreement because they are torching their houses with fire by belittling the country that supports them, which is Britain – [HON. MEMBERS: Inaudible interjections.] – I want to warn them because they will be chased away from Britain because of what they are doing – [HON. MEMBERS: Inaudible interjections.] –

          Mr. Chairperson, I am saying they should seriously take what I am saying because I am helping them by putting them in line since they are endangering their lives.  In Britain what they do, I am telling them what they do not see but what I see, when the British Prime Minister appoints a judge.  The judge will be presented to the House of Lords to find out whether or not what the Prime Minister has done is right or not.  They are not realizing that is what we want to do here.  When the President appoints a judge, he or she will be presented to the Senate.  They are belittling Britain by claiming the British do not know what they are doing – [HON. MEMBERS: Inaudible interjections.] – 

*HON. MARIDADI:  My point of order is that people should be quiet and allow us to follow the debate.  We want to hear what the Hon. Member is saying because it is his constitutional right.  We should honour even the rights of lunatics so let us accord him his right so that he speaks as articulated in our Constitution.  Thank you, the people should be quiet because it is his constitutional right– [HON. MEMBERS: Inaudible interjections.] –  

*THE DEPUTY CHAIRPERSON:  Order, order Hon. Maridadi, we do not have lunatics in this House.  We have sane people, please withdraw your statement.

*HON. MARIDADI:  I did not say that he is a lunatic.  It is every individual’s right and there is no lunatic in Parliament.  I am in agreement with you Mr. Chairperson.  Let me clarify, I did not say he is a lunatic but I am saying the rights of the lunatics should also be respected – [HON. MEMBERS: Inaudible interjections.] – He is not a lunatic but lunatics have got rights.  There are no lunatics in Parliament but I am saying even if one is a lunatic, let us give him the floor.  I withdraw the statement. 

*HON. MATAMABANADZO:  Mr. Chairperson, you heard Hon. Maridadi calling me a lunatic – [HON. MEMBERS: Inaudible interjections.] – 

*THE DEPUTY CHAIRPERSON:  Order, order, Hon. Matambanadzo the statement that you are repeating has just been withdrawn.  You should desist from repeating it and continue with your debate.

*HON. MARIDADI:  I never called him a lunatic.  He should withdraw the statement that I called him a lunatic.

*THE DEPUTY CHAIRPERSON:  You said in this Parliament there are no lunatics. 

*HON. MARIDADI:  Yes, there are no lunatics in Parliament and I never said Hon. Matambanadzo is a lunatic.  Probably he is a lunatic but I am not aware of that fact because I am not a doctor, witch doctor or a prophet to label him as such.

*HON. MATAMBANADZO:  Mr. Chairman, may I have your protection please because I want to talk about this important Bill that is before us.  The country called Britain values its Prime Minister to the extent of empowering him to appoint the judge after which he will be presented to the House of Lords and that is what we are emulating, but you are refusing.  Hon. Members of the MDC are refusing what Britain has done yet they are your handlers.  Do you think they will continue funding you?  You are not going to return to Parliament if you continue refusing this Bill.

Going further, I want to reveal your blindness and remind you that even the United States of America is listening to your contributions– [HON. MEMBERS: Inaudible interjections.] – Let me tell you what is happening in the United States of America which you are seeing as learned people who are belittling their funders.  What is happening in the United States of America is, the American President – [HON. MEMBERS: Inaudible interjections.] –  

*THE DEPUTY CHAIRPERSON:  Order, order Hon. Matambanadzo we are debating Clause 6.  I think you should direct your debate towards that.

*HON. MATAMBANADZO:  Thank you Mr. Chairperson, I am saying this Bill is very important as we are in line and we want to show other where they are getting lost.  The incumbent President of the United States of America appointed a very young person amongst all the judges and presented him to the House of Lords so that they interview him which is exactly what we want to do here.   After our President appoints the judge, he will be referred to the Senate – [HON. MEMBERS: Inaudible interjections.] –   You are not belittling us but belittling your handlers.  Are you not ashamed of what you are doing? You are wrong if you are belittling America as you are doing, who then is going to fund you?

          *THE DEPUTY CHAIRPERSON: Order, order! Hon. Matambanadzo, may you direct your debate to Clause 6.

          *HON. MATAMBANZADZO: Finally, I want to say that when I look at the Hon. Members of Parliament from the opposition, they are very learned; most of them are lawyers, that is why they were just debating directionless because we are giving them the honour.  We think that they are debating facts that will build our nation, but I want to say to the Hon. Members from the opposition, you are few because of your misdirection.  I think you should look at yourselves and be constructive people because a lot of people voted for you. 

          People went for the Referendum on this Constitution, hence they gave us the mandate to amend the Constitution.  Do you know that you were voted into power by people so that you come here to amend any wrongs in the Constitution? Are you aware of that? Do you know it?  If you did not know this, I will educate you in my capacity as a grade two pupil – [Laughter.]-

          *THE DEPUTY CHAIRPERSON: Hon. Matambanadzo, are you still continuing with your debate? I think you should wind-up because you are only left with a minute.

          *HON. MATAMBANADZO: The lawyers from the opposition with their education, - [Laughter.] - in English I would say that you lack ‘bachelor of common sense’ – [HON. MEMBERS: Inaudible interjection.]- I thank you.

          HON. GONESE: Thank you Mr. Chairman. I want to bring the debate back to clause 6 of the Amendment Bill.  I think this particular clause is actually the most important in terms of the Bill.  I want to say that this is the essence of the whole debate that we are having today. 

          It is important for all of us to really be serious when we analyse this particular clause.  I appreciate, Hon. Chair that we may have different perspectives, but I want us to really look at the clause and what it entails.  The import of this clause is to repeal the whole current of Section 180 and replace it with a new Section 180.  What the new Section 180 does first and foremost, is to differentiate the appointment procedures of three of the judges from those of the rest.

          I want all of us to really look at the wording and formulation of the clause and in particular, Mr. Chairman I want to direct the attention, not just of the Hon. Vice President but of all the Hon. Members so that for once, we do not look at this clause with political party lenses.  I know in the course of the debate reference has been made to members of the opposition and so on and so forth and members of the ruling party, but for this clause, I really want to plead with all members of this august House to remove their political part lenses and their political party jackets and look at this as Zimbabweans.

 As Zimbabweans what the appointment of judges envisaged by the new Section 180 entails is that the Chief Justice, the Deputy Chief Justice and the Judge President of the High Court shall be appointed by the President after consultation with the Judicial Services Commission.  I would like to underline the words after consultation with the Judicial Services Commission and look at Section 339 which actually describes what it entails.  In terms of Section 339 of our Constitution, whenever any authority is required to act either in consultation or after consultation, what is required of the authority is simply to seek the opinion of that other body to be consulted.  Once that opinion is sought, the authority gives the reasons and then looks at the point of view of the body to be consulted. 

Thereafter, there is no obligation; Section 339 makes it very clear that there is no obligation on the person who is consulting to take the advice or recommendation of the body so consulted.  So, what it means, Mr. Chairman is that the Judicial Services Commission has no power whatsoever; they are simply being asked to give their opinion.  Whatever opinion that they give, it is irrelevant if the person who is doing the consultation does not take into account that recommendation or advice which is given.

I want all Hon. Members to think very carefully whether this is what we want when it comes to the appointment of the top judicial officer in the land who happens to be the Chief Justice.  We must look at the power of the Chief Justice as provided for in our Constitution.  Let us also look at the power of the Judge President as provided for in our Constitution and ask ourselves this very simple question; is this the power that we want to vest in one individual?  I know from discussions that I had with Members across the political divide that in their hearts of hearts, there are Hon. Members who are sitting opposite who have got misgivings, reservations and some who are totally opposed to this Bill.  I want to say for a fact, it is unfortunate. 

The Hon. Vice President of the Movement for Democratic Change raised a very fundamental point, that this is perhaps one instance where we have got to look seriously at the provisions of our Standing Orders and consider the issue of voting in respect of this Bill, by secret ballot.  I want to ask my colleagues, especially those who are seated on your right, to reflect upon what I am saying and in their own caucus, in our absence, deliberate seriously about the import of this clause if you look at the further provisions.

I want to agree with Hon. Ziyambi Ziyambi, who raised a very fundamental point that we have a scenario where you are saying yes, the Judicial Service Commission may disagree with the President and if the President is to make an appointment, which is not consistent with the recommendation of the Judicial Service Commission, then the President must inform the Senate.  It goes further and says that, ‘provided that for the avoidance of doubt, it is declared that the decision of the President as to such appointment shall be final.’  At the end of the day, why are we seeking the opinion of the Judicial Service Commission if we are not going to be bound by its recommendation?

We are looking at a Judicial Service Commission, the majority of whose members are appointed by the President.  Look at the composition, apart from the three lawyers nominated by the Law Society and the teacher of law by the lecturers and perhaps the public accountant.  If you look at the Chairperson of the Public Service Commission, effectively, that is an appointee of the President.  If you look at the Judge President, he or she will be an appointee of the President.  If you look at the Chief Justice, that will be an appointee of the President.  The Deputy Chief Justice, is the appointee, so at the end of the day, we are having a body, the majority of whose members are actually composed of people who are appointed by the very same President.  So, why do you want to consult them if you are not going to take into account the advice that they are going to give?

So, I want my colleagues; this time I am not just pleading or begging the Hon. Vice President, I am also pleading, begging and appealing to all my colleagues that for once, let us put the interests of Zimbabwe first.  Let us not look at our own partisan interests.  Let us not look at who is the current incumbent, let us look at what might happen in the future.  I know that we are going for elections, as far as my colleagues are concerned, it is a fait accompli, “it is a done deal, but in politics it does not always happen that way” – [HON. MISIHAIRABWI-MUSHONGA: That is Theresa May.] – Yes, thank you very much my Hon. Sister, we had a situation where the Hon. Prime Minister of Great Britain and Northern Ireland thought that it was an opportune time to call for an early election thinking that she was going to get an even bigger majority and what has happened, alas!  She is now the leader of a minority party.  Let us think about that very carefully that we never know where the dice is going to fall when it comes to the next election. 

I want to ask our esteemed Hon. Vice President to consider this.  At least a lot of Hon. Members have made reference to the amendments.  In their system, they actually say on the advice and with the approval of the Senate.  So, at least their Senate must approve that appointment.  If we are to have this amendment, obviously I am against it, but if we are to have it at all, let us seriously consider what Hon. Ziyambi has said and have a scenario where we have at least either the Senate or better still, we say the National Assembly, which comprises of all the directly elected Members.  We say that perhaps the National Assembly should give its approval so that we have at least a majority of the total membership of this august House. 

If we have a total membership of 270 and then we say that – like in the Kenyan scenario, whenever that appointment is to be made, they also seek the approval of their National Assembly.  I want to say, that is perhaps a better devil.  So we are saying let us take away the power from the Judicial Service Commission (JSC).  I know that sentiments have been expressed that the Judicial Services Commission is comprised of unelected people…

THE DEPUTY CHAIRPERSON: Order Hon. Member, wind your debate.

HON. GONESE: Yes, but I think I am making very important points.  I am saying at least if you are saying the Judicial Services Commission is comprised of unelected people, let us now come to this august House which is comprised of elected people so that at least we subject the President’s choice to the approval of this august House.  I want to make reference to South Africa, it actually says; the President can make an appointment of the Chief Justice, but he or she must consult the leaders of all the political parties represented in their Parliament no matter how small.  Even that other small party with two or three Members of Parliament, we have got Romisa’s Party, Inkatha Freedom Party and so on, all those parties have to be consulted in terms of that appointment being made.

Before I conclude, Hon. Chairman, I would like to join my colleague, Hon. Majome, who raised the issue about the provision in sub-clause 2 -  again, that notorious clause, for the avoidance of doubt, that when this Bill was being crafted, it was envisaged that there will be a vacancy in the office of the Chief Justice.  There was a spirited attempt by one Romeo Zibani who even went to the High Court and got a judgment and on appeal to the Supreme Court, that judgment was overturned. 

At this point in time, I would like to salute the judges of the Supreme Court, Justice Hlatshwayo, Justice Ziyambi and Justice Patel, who looked at the principles of the law and at the end of the day, upheld the appeal by the Judicial Services Commission.  However, my concern Hon. Chairman is that, we believe that the current provisions at least allow for meritocracy to prevail.  We are going to have a situation where the best person for the job is to be appointed.  What this amendment is going to do Hon. Chairman is to promote other issues whereby you can have issues of regionalism which may come into play when a person is going to be appointed.  Issues of mediocrity and nepotism may come into play.  The reason is very simple, because there will be no process, we are giving unfettered discretion on the hands of one person. 

At least you can sanitise the Bill, Hon. Vice President by saying that, for those critical offices, at least try to restrict the choice to the existing judges because the current proposed amendment is naked.  It does not limit the choice to those who are already in the judicial service.  In respect of all the other judges as I have already alluded to, there is now a differentiation.  What it means is that you can pick somebody from the street as long as that person has been entitled to practice for 12 years even if the person is the most unsuitable in terms of competence.

  At least if you are going to say, for future appointments, let us have the choice restricted to those who have already gone through the process, who have already made it through interviews to become judges of the High Court.

THE DEPUTY CHAIRPERSON: Order Hon. Gonese, you can wrap up in just a minute.

HON. GONESE: Yes, I will just conclude in a minute.  So, I really ask my Hon. Vice President to at least consider amending the clause and say let that appointment of the three officers; the Chief Justice, the Deputy Chief Justice and the Judge President of the High Court come from people who are already judges of the High Court. At least that way, we will sleep better and we will feel more comfortable that at least the person who is going to be appointed is somebody who has gone through the process and has gone through the levels of competence that we require for that critical office. I thank you.

          HON. MLISWA: Mr. Chairman, I think this opened us a lot to the person of the President. We seem to undermine the person of the President in that the President will not think and that he/she will be a reckless person. I will go deeper in terms of that. Section 89 of the Constitution is very clear about who the President is. I think we seem not to be respecting that. For as long as we do not respect that, we will continuously have problems. The President is the Head of the State and Government and Commander in Chief of the Defence Forces. It talks about the duties of the President.

Let us go to the duties of the President. “Section 91, the President must uphold, defend, obey and respect this Constitution as the Supreme Law of the nation and must ensure that this Constitution and all other laws are faithfully observed”. This is what the President is expected to do. “The President must;

(a)             Promote unity and peace in the nation for the benefit and wellbeing of all the people of Zimbabwe.

(b)            Recognise and respect the ideals and values of the liberation struggle”.

Let me go back to that one. “Recognise and respect the ideals and values of the liberation struggle”. It goes without saying that whoever the President appoints must equally recognise and respect the ideals and values of the liberation struggle.

          Let me go back to the land reform with Chief Justice Gubbay at the time. He was going against the ideals and values of the liberation struggle and the President would not allow that to happen because this country was founded on that. He was certainly a service to the western world and not to the people of Zimbabwe. He had failed to respect that and in failure to respect that, the President must see it fit and realise that this person is not working according to the ideals and the founding principles of the liberation struggle.

As such, he must exercise the powers that he has by dismissing that person. We would not be having the land reform today if the President had not made that decision. We would not be having farms. Some of us would not be empowered. Despite us not having gone to the liberation struggle; we are empowered because of the struggle. – [HON. MEMBERS: Hear, hear.]-  Why should the President be appointing people who want to reverse the ideals and the founding principles of the struggle.

If the Opposition truly are part of this nation, they must equally subject themselves to the ideals and struggles of the struggle unless otherwise. You have that opportunity to say you are not part of the struggle of this country and you are prepared to go the other way. You are free to say that but make it very clear to everybody so that the nation knows where you stand and who you are.

HON. MARIDADI: On a point of order Mr. Chairman, it is factually incorrect that President Mugabe fired Chief Justice Gubbay. We do not want it to be recorded that President Mugabe fired Chief Justice Gubbay - [HON. MLISWA: I withdraw.] - I am not yet finished. I think we are putting on record that President Mugabe fired Chief Justice Gubbay. It is factually incorrect because Chief Justice Gubbay resigned. He tendered his resignation and the President accepted it. So, he did not fire him. When we debate, let us be factual. Let us not be pushed by emotions and say things that are wrong. President Mugabe respects the Constitution. He is a lawyer and he respects the Constitution. He would not have fired a sitting Chief Justice. Thank you Mr. Chairman.- [HON. MEMBERS: Inaudible injerjections.] -

THE DEPUTY CHAIRPERSON: Order, order!

HON. MLISWA: Mr. Chairman, I said the President must fire a Chief Justice who is against the ideals. As such, Chief Justice Gubbay resigned, but I am saying the President must fire because Chief Justice Gubbay was certainly on the wrong and I am giving that as an example. I said he resigned but I said people like him who are against the struggle must be fired and that is why the President must have power.

HON. MAJOME: I have a point of order.

THE DEPUTY CHAIRPERSON: Order, order please. What is your point of order?  

HON. MAJOME: My point of order Mr. Chairman is that in terms of Section 190 of the Constitution, it is the responsibility of Parliament to uphold the Constitution and ensure that it is respected. What Hon. Mliswa is saying is a direct attack on everything – [HON. MEMBERS: Inaudible interjections.]- Listen, it is a fundamental undermining of the pillars on which our system is, the rule of law is based and the separation of powers. This Constitution does not allow in terms of Section 164, it protects the independence of the Judiciary. The President is actually insulated from firing judges. What he is saying is defamatory of the President for him to insinuate that the President does not understand that basic role and to recommend that a judge be fired by the President is to display an alarming lack of basic understanding of what his role as a legislator, what the role of the Executive is and what the role of Parliament is.

These are basic and this debate then becomes a joke if a Member of Parliament thinks that it is okay to suggest that a President fires a judge. It is sacrilegious and it is defamatory of the Office of the President. He just needs to get some basic information and must understand what we are talking about.- [HON. MEMBERS: Inaudible interjections.]-

THE DEPUTY CHAIRPERSON: Order, order at the back. If you feel you have something to say, you can always stand up and also debate against whatever he has said.

HON. MAONDERA: Mr. Chairman, you recall that this august House is grappling with the attack on Members of Parliament when they go outside. Hon. Matambanadzo has just shouted to Hon. Majome saying saka wakarohwa kwaMutare. This means it is attesting to the fact that they are behind the attack of Hon. Members whenever they are moving around. So, can he please withdraw that statement?

THE DEPUTY CHAIRPERSON: Order Hon. Sibanda. Hon. Members, let us be serious with what we are doing here. You are out of order. Can you please proceed Hon. Mliswa.

HON. MLISWA: Thank you very much. Certainly Mr. Chairman, I will be very clear like I said that the person of the President, in the Constitution Section 187, in terms of the removal of the judges from the office. It is clear that if the President considers that the question of removing the Chief Justice from office ought to be investigated, the key issue is President. If the President considers that the question of removing the Chief Justice from office ought to be investigated, the President must appoint a tribunal to inquire into the matter. So to me, that is precisely the point that the President in his person has also got the Attorney-General who advises him. He has got so many other officers who advise him on how to go about it. So, there is absolutely nothing in the President appointing because upon removal, he equally consults, so to me, the fact that the Constitution even covers the fact that he must consult shows that there is enough thought in this Constitution that was put together.  I always repeat that the opposition was instrumental in crafting this Constitution.  Were they drunk when they moved to the point which Hon. Gonese said that the President will consult?  You were part of making this Constitution.  Why at that point-in-time did you not remove the word consult?  You allowed it to be there, so as such, play to the ball, play to the Constitution.  That is what you are required to do.  If you feel that you do not believe in that, you have the right to amend the very same section of the Constitution. 

I will go again to the powers of the President.  We go to the duties of the President because we seem to be forgetting who the President is.  In fact, I will even tell you the qualifications for elections of the President or Vice President.  I will even go a step further to make you understand what the Constitution says are the requirements for somebody to be a President.  They do not have to be a lawyer, doctor or rocket scientist but all it says is that a person for election as President or Vice President; he or she should be a Zimbabwean citizen by birth or descent, has attained the age of 40 years, which means if I wanted, I am over 40 years, I could be President and you could be President, it provides that ordinary resident in Zimbabwe and is registered as a voter.  Those are the prerequisites of being a President.  You must now then amend the Constitution and say he must be a lawyer, since you are so obsessed with the law.  You have a right to then include that.  So, it is as simple as that.  It does not even require anybody to do that.

HON. MAONDERA: On a point of order, Standing Order No 106 is very clear. It speaks to irrelevance or repetition.  The Hon Member is wasting our time by saying things that are irrelevant. 

THE DEPUTY CHAIRPERSON:  There is no point of order.

HON. MLISWA:  It is clear in the qualifications of the president, which are so simple.  Not only that, but also failure for the President to discharge his duties, there is Section 97 in the Constitution which talks about the removal of the President.  I will explain to you what it takes to remove the President in the event that he/she fails to govern the country.  The removal is very clear and this is in the Constitution that you are talking about.  You wanted to talk about the Constitution and this is what we are talking about today.  The removal of the President - failure by the Chief Justice appointed by the President certainly has repercussions to the Office of the President.  That can even go as far as misconduct on the office of the president.

 What does the Constitution say when there is misconduct on the part of the President?  Here we go:  The removal of the President – The Senate and the National Assembly, by a joint resolution passed by at least one and half of the total membership may resolve that the question whether or not the President or Vice President should be removed from office for; serious misconduct, failure to obey or uphold or defend this Constitution.  So, if the Chief Justice has been appointed by the President and fails to uphold this Constitution, it has repercussions on the person who appoints.  As such, there is a provision in the Constitution which ensures that the President is felt.  Not only that, but it goes again to see willful violation of this Constitution or de-inability to perform the functions of the office.  What does that mean?  If the Chief Justice appointed by the President has failed to do a job, it has repercussions on the CEO.  If a financial director of a company fails to do…

HON. MARIDADI:  On a point of order, the Hon Vice President Hon. Mnangagwa is here, the Hon. Vice President Hon Mphoko is here.  God forbid, let us respect these two gentlemen and be decent in the way we discuss these things.  Out of nothing but decency and respect, let us respect those two elderly gentlemen and debate with a certain level of decorum, decency and common sense.  I thank you.

HON. MLISWA:  Just to summarise and finish off, the President is equally empowered to appoint two Vice Presidents who we are proud to have in the House.  So, his failure to act as President - if he is equally empowered to appoint two Vice Presidents, what is wrong with him appointing a Chief Justice.  So, to me, it is noble for the President to be given the power to appoint the Chief Justice.  I thank you.

HON. ADV. CHAMISA:  Hon. Chair, I do not seek to waste the House’s time.  I think a lot of things have been said and I want to start from what Hon Ziyambi said because he made a very important point.  We are making laws, for posterity as a people’s Parliament.  So, when we are making laws, we are making them for the people.  I want to thank Hon. Ziyambi for the suggestion, especially for us to carry the spirit that was in Section 180 of the previous provision, the one of checks and balances so as to have what we call ‘the balancing of the tyranny of offices’.

 No office is supposed to be tyrannical against the other office.  We should not reduce the Judiciary to being the deputy of the Executive because it is not the deputy of the Executive.  So, we want to make sure that we have three separate pillars and in order to do that, we need to ensure that we breathe the oxygen of checks and balances into how we appoint leaders.  We should not mistake ourselves and say we want to take away the power to appoint from the President.  That power cannot be taken away but we want to make sure that we season and marinade the route to the appointment with the necessary checks and balances that are contained in the previous spirit of the Constitution.

 I think the suggestion that is coming through is very important.  How do we make sure that we make the Judiciary a creature of the necessary appointment?  Why do we not invoke the permanent and progressive role of Parliament either through the Senate or National Assembly or a Select Committee of Parliament that has to then subject whatever appointment is made by the President or is supposed to go to the President to the role of the Legislature.  I think that is a progressive suggestion which should not even just be limited to the Chief Justice.  Even our Ministers are supposed to be subjected to the validation of Parliament.  If the Minister has not been validated by Parliament, he/she has to go back to the President so that the President makes another appointment.  That is how we strengthen our democracy as a country.  So, I want to say that this is a very progressive thing and what we want at the end of the day is not to have a king or an emperor. We want a President who is the first resident.  We cannot have a situation whereby we have a person who is the power unto himself for everything.  Yes, he is our President, we have elected him but you must know.  I am saying this because I am very conscious of the possibilities that are there.  Next year there is going to be an election, I am Deputy President of the Opposition – I might end up being the deputy occupant of that office and we do not need those powers.  As a new Government, we do not need those powers.  They are odious powers and are unnecessary.   This is why we are saying to the Hon. Vice President, please let us reconsider some of the laws that we put in place.  We will end up with a sword where we are supposed to have a very functional instrument or two that will help our country.  Thank you very much.

THE VICE PRESIDENT AND MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON.  E. MNANGAGWA):  Mr. Chairman, one other beautiful tenant of democracy is the fact that you cannot build a durawall against the imaginations of the people.  People are allowed to float, float and float their imaginations, that is part of democracy – [HON. ADV. CHAMISA:  Like your imagination of becoming President.] –

I would like to address the sentiments expressed by Hon. Misihairabwi-Mushonga.  Again, I am being courteous in replying to the same questions that were raised which I made a reply to.  They are being raised again the second time when the answers are already there.  However, I would like to repeat that all judges will remain subjected to the process of interviews to become a judge.  That is not being changed.  Also, if say a Labour Court judge want to go to the High Court and there are vacancies there; for anybody to come to the High Court, there will also be interviews for persons to be judges of the High Court.  If there are vacancies also in the Supreme Court, again for you to rise from the Administrative Court to the Supreme Court, you will have to go through the process of interviews for that purpose.  The same applies for one to move from the Supreme Court to the Constitutional Court, that has not changed; you will still have to go through interviews and so on.

Let me again point out, though I did so before that for every single position whether in the High, Supreme or Constitutional Court, there should be three names submitted for each single position so that the recommendations by the Judicial Service Commission will have to make sure that there are three names for each post.  The same applies to the President; if he is to appoint a Judge President or Chief Justice, he must have three names.  He must submit to the Judicial Service Commission in order for the Commission to look at their qualifications, probity and integrity.  The Judicial Service Commission has that duty to look at the probity, integrity, qualifications of the individual and make recommendations to the President and the President is so guided.  That is what is happening. We are changing the procedure where we have the Chief Justice being exposed to the spectacle where Judges are put to the public spectacle jostling for a position and the public is watching Judges of that nature. 

I want to say one other thing, we have three pillars of State of equal status; the Judiciary, this Legislature and the Executive.  These are equal pillars of State.  However, you have the Speaker as the head of the Legislature and the Chief Justice as the head of the Judiciary.  We have the President as the Head of the Executive but we have one other person who is Head of State when we combine the three – [HON. MEMBERS: Hear, hear.] – You must distinguish these two roles. These three pillars are of equal legal status but there is one State that is the Head of State who is above the three except that when that Head of State comes down, he becomes Head of the Executive but when he is Head of State, he is head of 1, 2 and 3.

Muzukuru, the question of the possibility - alright hapana muzukuru?  Hon. Misihairabwi-Mushonga – [HON. MISIHAIRABWI-MUSHONGA:  Ndiripo, hazvichinje.] – Hazvichinje.  The question of having a lunatic President which you said there is that possibility – unless the Constitution changes, I do not think that Zimbabweans are so lunatic that they will produce a lunatic.  My belief is that the people of Zimbabwe are sober.  They will produce a sober President.  That is my belief – [HON. MEMBERS:  Hear, hear.] - 

I come to one area I have repeatedly replied kuna mainini vangu Majome throughout but she continous speaking the same repeatedly.  Because ndimainini vangu, I will repeat also.  The public interest when we discuss about this august Chamber; who represents the public interest of this country in this Chamber – it is the majority party – [HON. MEMBERS:  Hear, hear.] -  That is answered but it is also true that the minority have a right to their opinions.  That I accept. At the end of the day, the public interest is expressed through the majority elected by the people.  That is what it is. So they should continue labouring and labouring on that elementary jurisdical point.

Cde. Maridadi, haaa shamwari  - Maridadi, Members of Parliament are elected members.  Hon. Members here, you are elected and you represent constituencies.  No judge is elected, they are appointed.  Here, the Speaker of Parliament is elected by elected Members.  We should not equate the appointment of the judge to that of Speaker because the Speaker presides over elected persons in the country who represent the interests of the people – [HON. MEMBERS:  Hear, hear.] -  There is a distinct separate procedure for the appointment of judges which I have already explained.

Both sides of the House are concerned about the Attorney-General.  The Attorney-General does not run the Ministry of Justice, Legal and Parliamentary Affairs.  I was given the mandate by the Head of  State in the Executive to represent the Ministry of Justice, Legal and Parliamentary Affairs in the piloting of legislation relating to my mandate as administrator of the Act and not the Attorney-General. So, the question of the Attorney-General coming to Parliament or not does not impinge on my role to pilot - so, I have dealt with that one as quickly as I can. 

I am sorry, I am told there is not much time.  So, the same with the contributions of Hon. Gonese.  Hon. Maondera, you said that those whom you are representing sent you to come and ask whether this issue is about succession.  Go and tell them that no.  There is no country under the sun, we read about the procedure of Kenya.  We corrected it, it is not as recounted by some Hon. Members in this Chamber.  We read the sections, so that is the story.  Because of time, I think I have covered everything.  I thank all those who have contributed.  Hon. Matambanadzo, Hon. Mliswa and Hon. Ziyambi Ziyambi, I want to thank you for your support.  May you be blessed with long life.  Thank you.

It being Five Minutes to Seven o’clock p.m. THE DEPUTY CHAIRPERSON interrupted the business under consideration in terms of Standing Order Number 51.

House resumed.

Progress reported.

Committee Stage to resume: Wednesday, 21st June, 2017.

On the motion of THE HON. VICE PRESIDENT AND MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. E. MNANGAGWA), the National Assembly adjourned at One Minute to Seven o’clock p.m.    

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National Assembly Hansard NATIONAL ASSEMBLY HANSARD 20 JUNE 2017 VOL 43 NO 71