Acting Speaker refuses to entertain debate on the nomination fee issue #ElectionsZW
Acting Speaker of the National Assembly Honourable Willian Mutomba (Buhera North) on Wednesday refused to entertain debate on the issue of exorbitant nomination fees, arguing that the matter had concluded.
Under Statutory Instrument 144 of 2022 Presidential candidates are supposed to pay about US$20 000, while Parliamentary candidates require US$1000 to be nominated.
However, the Constitutional Court ruled that the fees were unconstitutional and ordered Parliament to deal with the matter.
The Statutory Instrument was forwarded to the Parliamentary Legal Committee to check whether it violated the Constitution or the Electoral Act.
The Parliamentary Legal Committee issued a non-adverse report, which means the Statutory Instrument was not violating any law.
However, legislators in the National Assembly such as Willias Madzimure had hoped to be allowed to debate the non-adverse report.
”Mr. Speaker, is there a guarantee that we are going to deal with the issue of the Gazetted S.I. 144 of 2022 that was declared unconstitutional by the Constitutional Court and referred to Parliament because we seem to be running against the clock,” he said.
However, the Acting Speaker would have non if it and argued that the report of the Parliamentary Legal Committee was enough to settle the matter.
”I am saying that the matter of S.I. 5:1 has actually concluded and the Non-adverse report was actually reported here in Parliament yesterday,” said Honourable Mutomba.
Addressing the media on Tuesday, Justice Minister Ziyambi Ziyambi had indicated that legislators would be given the opportunity to debate and would also be called to vote should there be disagreements.
Below is the debate that took place on the matter in the National Assembly.
NATIONAL ASSEMBLY HANSARD 14 JUNE 2023 VOL 49 NO 49
PARLIAMENT OF ZIMBABWE
Wednesday, 14th June, 2023
The National Assembly met at a Quarter-past Two o’clock p.m.
HON. MADZIMURE: Mr. Speaker, is there a guarantee that we are going to deal with the issue of the Gazetted S.I. 144 of 2022 that was declared unconstitutional by the Constitutional Court and referred to Parliament because we seem to be running against the clock.
THE ACTING SPEAKER (HON. MUTOMBA): I am saying that the matter of S.I. 5:1 has actually concluded and the Non-adverse report was actually reported here in Parliament yesterday.
HON. GONESE: Mr. Speaker Sir, the reason why I have risen is because we must look at the matter in context. This is not an ordinary report of the PLC. If you look at the Constitutional Court Judgement, the decision of the Constitutional Court was premised on two grounds. Parliament and not a Committee of Parliament. If you look at the ruling, it refers to Parliament as an institution and as Parliament, we are required to look at new issues.
The first one is where there are constitutional issues as to whether that particular Statutory Instrument 144/22 is constitutional and that was the first aspect which the Parliamentary Legal Committee was required to look into. Secondly, because the court referred the matter to Parliament because it is Parliament which is responsible for – I just want the Chair to clarify these issues because if the Parliamentary Legal Committee sat and came up with their report, that is not the end of the matter in the particular context of what we are talking about. The second issue, when we are looking at the role of Parliament, we are also required to look at the issue of whether a particular instrument is intra vires the enabling Act because the enabling Act gives certain powers, the Electoral Act itself will give certain parameters of how certain things have to be done and that is another aspect which we need to be appraised of.
If the Parliamentary Legal Committee has issued a report, in this particular instance because this matter was referred by the Constitutional Court, that report must be properly tabled, notwithstanding that it is a non-adverse report and as a result Mr. Speaker Sir, we demand that the Parliamentary Legal Committee tables their report and give reasons and explain why they came to whatever decision they arrived at. As far as I understand Mr. Speaker, even if it is a non-adverse report, the fact that this was communicated to the Hon. Speaker does not mean that the representatives of the people who are the men and women seated on your right and on your left have a responsibility and that responsibility is to examine that. This is a matter which has got very serious repercussions on the rights of the people of Zimbabwe in terms of Section 67 where every Zimbabwean citizen has a right to vote and a right to be voted for and it is this right to be voted for which is being infringed by the Statutory Instrument in question.
Mr. Speaker Sir, you must be aware that in this august House, I moved an amendment to the Electoral Amendment Bill in terms of a clause to the effect that nomination fees must neither be exorbitant nor inhibitive and prevent citizens of Zimbabwe from participating in the elections. The Hon. Minister accepted that amendment, I know that it is not law and it is not going to be law because of the provisions of Section 157(V) of the Constitution. Notwithstanding that, it is not incumbent upon this august House to deliberate and pronounce upon the constitutionality of Statutory Instrument 144 of 2022. Those will be my submissions and this is where we need yourself as the Speaker to exercise your rights.
THE ACTING SPEAKER: Thank you very much Hon. Gonese. With all due respect, the legal Committee that I am talking about has been constituted legally by this august House and their final report which is non other than the non-adverse report came into this House coming from the Parliamentary Legal Committee. I do not know if you are alleging that these people did not do their job that well. As far as I am concerned, all the procedures that are supposed to be taken by Parliament have been dully followed. Thank you.
HON. GONESE: Mr. Speaker Sir, your sister Speaker who was seated in the Chair yesterday, indicated that the report was going to be brought to the Parliamentarians. I was listening on virtual, I was not physically in the House. Your sister Speaker who was in the Chair at the time indicated that this was going to be presented to the august House. I have already indicated to you Mr. Speaker Sir that this is a matter which is different from all other reports which the Parliamentary Legal Committee has had to issue.
This is a matter which was specifically referred to us as an institution by the highest court in the land which deals with all Constitutional matters and the wording was ‘Parliament’, and a Committee of Parliament is not Parliament. It is a sub-Committee constituted by this House but has got to report to us. If it was delegated to look into this issue, it was just doing so on our behalf. Those five Hon. Members are not Parliament. They are just a sub-Committee of this august House and because they are a Committee of this august House, they are not the House. This is the reason why in this instance the report should have been presented to us with the reasons so that as Parliament, we can interrogate those reasons.
I remember yesterday, the Hon. Minister of Justice, Legal and Parliamentary Affairs, Hon. Minister Ziyambi was interviewed on Studio 7 and he indicated that yes, Members were going to vote on the issue of the report, that is exactly what he said on Studio 7 which I was listening to yesterday. We do not want to have a shifting of the goal post Mr. Speaker Sir. I think those are the issues which you have got to address. The fact that the PLC is not Parliament, that is the issue which I believe Mr. Speaker Sir you would be abdicating in your duties and in your responsibility if you then rule that a decision has already been made. They cannot make a final decision on our behalf on a matter which has been specifically referred to us as an institution by the Constitutional Court. So, on those grounds Mr. Speaker Sir, I submit that it is not appropriate for the Chair to rule that the matter has already been concluded because it has not been concluded.
THE ACTING SPEAKER: What I have actually said earlier on still stands because the Constitutional Court said the decision has to be made by the 16th June, 2023. Our PLC here met before the 16th and they brought their Non-Adverse Report yesterday which I as the Chair who was sitting here yesterday – I was the one who actually wrote that report, so it actually closes the matter. I am sorry about that – [HON. MEMBERS: Inaudible interjections.] – We cannot debate on this issue.
Some Members from both sides of the House stood up and started arguing about the issue without being given the floor.
HON. MATARANYIKA: On a point of order Mr. Speaker Sir…-[HON. MEMBERS: Inaudible interjections]-
THE ACTING SPEAKER (HON. MUTOMBA): Order, order! (1) It is declared that in respect of Statutory Instrument 14 of 2022, which was published in the Gazette dated 19th August, 2022, the respondent failed to fulfill its constitutional obligation under Section 152 of the Constitution.
(2) The respondent is ordered to comply with the constitutional obligation under Section 152 of the Constitution by not later than close of business on the 16th June, 2023.
(3) There shall be no order as to cause reasons for the order to follow in due course. By Order of the Court.
HON. MARKHAM: On a point of clarity Mr. Speaker.
THE ACTING SPEAKER: No, there is no point of clarification here. I am still continuing and I have not finished Hon. Markham.
*HON. HWENDE: Nyaya ya Chokuda takamboitaura muno umu. Every time he is misleading you. He is not supposed to be sitting here. We raised this thing; he misleads you daily paanouya pese.
Nyaya irikutaurwa muno umu ndeye ma US$1000. Iwewe hauna US$1000 – [HON. MEMBERS: Inaudible interjections] [HON CHINOTIMBA: Munoda kutora Markham who is white muchisiya Biti who is a black man] – [HON MEMBERS: Inaudible interjections.] –
HON. MARKHAM: On a point of order. I consider that statement totally racial. You as the Speaker had no intention of calling the man to order. In this inflammatory position that we are in now, it is quite clear to me that there is no reconciliation from the Hon. Member and the party he represents. Unfortunately, he is not the first to refer to me because of my colour. I was given my skin by my parents as they were and yours. It is not that I selected it. One can almost say the God or whoever your God is gave it to you. I am sick and tired of being referred to as white.
In the Constitution, it states categorically that you cannot separate us by religion, sex, gender, you name it and yet you tolerate that. Mr. Speaker. I would like to announce to this House that I am absolutely disgusted by the racism that comes from that side and is also endemic in my own. I take leave of this House. Good afternoon.
Hon. Markham immediately left the House. – [HON MEMBERS: Inaudible interjections].
THE ACTING SPEAKER: Order! It is just unfortunate that Hon. Markham – I gave the opportunity to Hon. Markham to raise his concerns and it is unfortunate that he went out before I responded. I thought he was reporting to me for me to give a response. What I wanted to say I did not hear what Hon. Chinotimba said because of the commotion – [HON MEMBERS: Ahhhhh]- How can you say Ah! I did not hear that. I wanted to confirm so that I could actually ask Hon. Chinotimba to reply and he walked away from me – [HON. MEMBERS: Inaudible interjections]-
HON. T. MLISWA: Hon. Sibanda, you are a man of honour and very much respected in the Binga area. May we just exercise that in this House.
Mr. Speaker Sir, the truth of the matter is that there was an exchange of words between the left and the right. There was an exchange which we were not privy to. You were busy attending to issues and indeed you did not hear what was going on but the truth of the matter which I think is important for us to address is that – I will end up attacking you one by one, physically. We are tired of this rubbish. We did not come here for this. I train too hard. It is important that you allow me to speak.
Hon. Matsunga and Hon. Murai having stood up and exchanged words with Hon T. Mliswa. – [HON MEMBERS: Inaudible interjections.] –
THE ACTING SPEAKER: Hon. Mliswa address the Chair.
HON. T. MLISWA: Mr. Speaker Sir, to cut a long story short, the issue at hand which is important and that needs to be addressed is that indeed there was an exchange which you were not preview to. Hon. Chinotimba’s remarks on Hon. Markham in terms of white and black was wrong and he must withdraw that. I heard that and I think that is the import of this issue that he had no right to talk about white and black. He must withdraw those remarks because it does not sit well with the country, with what we stand for and all that.
I actually heard it, that is why I am standing up to say that. So, it is only proper that he withdraws those remarks, but you did not hear them and unfortunately Hon. Markham left before you made a decision. It is important therefore for Hon. Chinotimba to withdraw those remarks. Thank you Mr. Speaker, Sir.
THE ACTING SPEAKER: Like I said earlier on, it was unfortunate that Hon. Markham decided to go out. What I actually wanted was confirmation of what Hon. Mliswa has just said because there was a lot of commotion. Words were being exchanged. I was here concentrating on the main issue. What was actually transpiring there, I was not preview to. So is Hon. Chinotimba around so that he can apologise – [HON. MEMBERS: Inaudible interjections.] – Order Hon. Members! I will have to ask Hon. Chinotimba to withdraw the statement that he has actually said to Hon. Markham the moment he comes into the House. So, this issue has been concluded.
HON. P. D. SIBANDA: On a point of order Mr. Speaker Sir.
THE ACTING SPEAKER: What is your point of order Honourable?
HON. P. D. SIBANDA: Thank you Mr. Speaker. I have listened to my colleagues and I have also listened to you reading the order of the Constitutional Court. While my colleagues want to indicate that the order was directed to the PLC, I want to say I disagree with that. The order says the ‘respondent’ and the respondent in that matter was not the PLC. The respondent in that matter was Parliament and Parliament was enjoined by the Constitutional Court to comply with the provisions of Section 152.
Complying with the provisions of Section 152 does not mean that the report of the PLC should not be tabled before the House. Let us disabuse ourselves from that kind of understanding. That is not what that order means. It simply says let Parliament carry out its duty. If we look at Section 152 (3) and the proviso to that says ‘after scruitnising, must report to Parliament, Vice President, Minister or authority as the case may be’. So the issue of reporting to this House was not ousted by the order of the court. Now, I appreciate that by tradition, this House has not been debating non-adverse reports. I totally agree, but that is just a practice. It is not a provision of the law that non-adverse reports must not be tabled in the House. Can we be bound by tradition on such an important matter of public interest? I disagree Hon. Speaker.
This matter is of critical importance. Five Members of this House cannot bind the whole House and say this is the position that Parliament has taken. The five Members were simply delegated a duty to scrutinize. After scrutinizing that Statutory Instrument (SI), this House is empowered to demand that that non-adverse report be presented here. Why, because the public is watching, they want to know why this committee concluded that the fees that were gazetted are alright. The only way that the public can get access to that – remember this House is enjoined to be as transparent as possible in conducting its business.
Now, you smuggled a report and hid it somewhere. Nobody in this House, nobody outside knows the reason, the justification behind the finding of that committee. As a result, it is in the public interest, and as we demand, we hereby do as a House that let the report be tabled. Once that report is tabled, then we will know if the House agrees with the findings of its committee. Why are we hiding it? What is it that we are hiding? Indeed, you have been misled by the Clerk. There is no law that says a non-adverse report must not be debated here. It is just tradition and practice, the law allows presentation. It says, ‘it must report to Parliament, Vice President, Minister or authority as the case may be, whether it considers any provision in the Bill, SI, or draft, contravenes or if enacted will contravene any provision of this Constitution’.
It does not say that if it finds that it complies with the Constitution, then it should not be debated, there is no such law. Therefore, it is my submission that it is in the interest and in the integrity of this House that the report be publicized here, be tabled so that everyone else has it and we also debate it. I so submit Hon. Speaker.
THE ACTING SPEAKER: Hon. Sibanda, thank you very much for your submission. I do understand where your arguments are actually coming from. You talked about a tradition; we have been used a lot to tradition that a non-adverse report is not supposed to be debated. The responsibility of passing any report, with due respect is this House, not the Parliamentary Legal Committee (PLC). However, I also would want to inform you that the PLC is constituted by Members of this House. It is a leg of Parliament, a Committee that has been chosen from the learned lawyers, who know the law of this country. So, if they came up with their findings and they reported to this Parliament, now we are saying the House is not happy with that. I think it is very important that with all due respect, you can actually approach the court because the Parliamentary Legal Committee was instituted by this Parliament. We are not all lawyers. Those Members who form the Parliamentary Legal Committee are lawyers. So whatever they bring to this Parliament, we actually feel that it is coming from competent lawyers of this nation.
Before I conclude, let me just read out to you Part 3 of the Constitution, that is Section 9. Report of Parliamentary Legal Committee on Statutory Instrument (SI), “before the Senate or the National Assembly considers a report of the PLC that a provision of a SI contravenes this Constitution or its enabling Act, the Committee may withdraw the report if the Committee is satisfied that the provision has been repealed or amended in such a way as to remove the contravention. (ii) if after considering a report of the PLC, that a provision of a SI contravenes, the Senate or the National Assembly resolves that does contravenes the Constitution, the Clerk of Parliament must report the resolution to the authority which enacted the instrument. That authority must, within 21 days after being so notified, either (a) apply to the Constitutional Court for a declaration that the SI is in accordance with this Constitution or repeal the SI”
HON. P. D. SIBANDA: Hon. Speaker, I did not hear the section you were citing but I am informed that it is the Fifth Schedule. What I got when you were reading, you intimated that when the Senate or the National Assembly is not happy with an SI, the PLC must withdraw that report. Mr. Speaker, that should be the remedy, of course I appreciate you are saying lawyers, we are also lawyers here. Those that sit in that Committee are not the most competent and remember Mr. Speaker, the decision of – [HON. MEMBERS: Inaudible interjections.] – Togarepi, kana usinganzwe chirunguka, tsvaka interpretation.
THE ACTING SPEAKER: Let us give him the floor. Can you finish up we want to proceed?
HON. P. D. SIBANDA: There were five Members of that Committee. The decision was not unanimous. Now, the report comes to this House, I am a Member and I enjoy certain privileges as a Member. The people of Binga North and the rest of this country, want to know the rationale behind the decision that was arrived at. Possibly, we might agree with the Committee or we might disagree with it but I am saying where Members are showing that they are in disagreement with the findings of the PLC, there is a remedy. The remedy is either it is withdrawn or it is tabled because the law does not ban a non-adverse report from being debated. That is my position Mr. Speaker. It cannot stand when I am objecting it. I am a Member here and I am objecting to the adoption of that PLC report. How do you treat me? Will you tell me because I am one who has stood up and I know many others here who are not in agreement with that report. So, you will say you can go to hell just because that report has just come from the PLC. There is no way five Members can then make a decision on behalf of the rest of this House. I rest my case Mr. Speaker.
THE ACTING SPEAKER: Thank you very much. I think Section 39 actually explains the way forward and we are talking about Mr. Clerk, who is also mentioned in this section. Mr. Clerk has got 21 days which he is supposed to act accordingly, if ever there is disagreement on the PLC report. So, we need to move forward. May I say again, we have taken much of our time debating on this issue. It is no longer important because it is eating a lot into our business of the day. Any other Member who is going to raise this, that will be so much disrespecting the orders of Mr. Speaker. Thank you.
HON. P. D. SIBANDA: Twenty-one days is just the maximum.
THE ACTING SPEAKER: It is clearly stated that Mr. Clerk has got 21 days where he is supposed to act, not now.
HON. P. D. SIBANDA: No, no, Mr. Speaker….
THE ACTING SPEAKER: I told you that any other Member who is going to stand up not in compliance or listening to my orders, that would be so much showing disrespect to the Chair.
HON. P. D. SIBANDA: I do not intend Mr. Speaker, to show disrespect to your office. I do not intend at all. My desire is to represent those that are voiceless who are outside there. I am not standing because of my own personal ego. I am standing because there are so many people outside there who are crying for what I am saying. The 21 days that are being mentioned is not the minimum. It is the maximum period that is provided. So, the Clerk cannot only act within a day or within two days. It is not a requirement that we should act after 21 days.
THE ACTING SPEAKER: Okay Hon. Sibanda. My decision at the moment is final. May I give Hon. Mayihlome the floor to continue – [HON. MEMBERS: Inaudible interjections.] –
HON. T. MLISWA: On a point of order Mr. Speaker Sir. I think with due respect, I hear your response. What I am not sure about is, the Constitutional Court is the highest court of the land and they equally got Parliament to act. Maybe it is the aspect of procedure which I am probably questioning. I just want to make sure that the procedure was followed. If indeed the Constitutional Court ordered Parliament to act, was it not proper for it to be announced in this august House that the Constitutional Court has ordered Parliament to do this, as a result, it is now referred to the appropriate Committee? The appropriate committee must report back. I am just asking on the aspect of procedure because we were not informed that the Constitutional Court order was done.
People are trying to question why was this not done transparently. There is also the aspect of procedure. Many times there are issues that come before this House, announcements are made and it is referred to a certain Committee. That Committee’s task is to report back to us. It cannot report directly to the Speaker or Clerk. It has to report to us, table the report of its findings and then that report is adopted. So, I just want to understand from a procedural point of view – was that not supposed to be done? If it was not supposed to be done, then what is it that will really give credibility to this because the Constitutional Court is the highest court? As Members of Parliament, we do not want a situation where we are seen to be going against the Constitutional Court. Procedure is what I am asking. If there is no need for such a procedure, then I do not have issues. We do not want Parliament to be sued tomorrow because they did not follow procedure and all that. That is all I would want to know.
If the process and the procedure I am talking about is not important and we do not have to do it, then let it be on record. Not only that, can we also be told the proper procedure? At times we lack information and we do not have the knowledge. We are always eager to learn. We can then be told of the procedure which is to be used. Tradition, as you admitted is said. I am the one who said I have never been in this House and seen a non-adverse report being debated. It is tradition but is it supposed to be debated? All these things, I think we need to be schooled about them so that we are better representatives of the people. Thank you.
THE ACTING SPEAKER: To answer the issue you have raised Hon. Mliswa, the procedure was actually followed. The way the Parliamentary Legal Committee reports to Parliament is that it produces a report which is supposed to come to this House and it is read to the Hon. Members. That is the time when Hon. Members heard about the report, they were suppose to raise a non-adverse report or adverse report. That is the time when you are supposed to raise your concerns. Now, this issue is already passed. It was reported yesterday – [HON. MEMBERS: Inaudible interjections.] – No, I am not opening because I have already responded.
HON. T. MLISWA: The question Mr. Speaker Sir, from a procedural point of view, was there an announcement in this august House that we have received an order from the Constitutional Court and the Legal Committee has been mandated, it is seized with the matter and they will report back? I do not even know when the Legal Committee reported this in this House, maybe I was not there. I would like to know when it was reported in this House. Hon. Members, do you remember when it was reported in this House? When was it reported in this House Mhofu? Ndipo pane nyaya – [HON. MEMBERS: Inaudible interjections.] –
HON. MATARANYIKA: Mr. Speaker Sir, thank you for affording me the opportunity to elucidate the import of the judgement by the High Court. To begin with, Statutory Instruments are referred to the Parliamentary Legal Committee every month and –[AN HON. MEMBER: Inaudible interjectiobs] – but I am still explaining myself Mr. Speaker Sir.
HON. T. MLISWA: On a point of Order Mr. Speaker. I asked for the procedure which is in the interest of everybody here. Was the procedure followed? Mr. Speaker, I can come there but it must be on record.
HON. HWENDE: On a point of Order Mr. Speaker. According to the rules, if I have a point of Order, I should be given audience.
THE ACTING SPEAKER (HON. MUTOMBA): You are not referring to this issue Hon. Hwende.
HON. HWENDE: Which one, but it is important.
THE ACTING SPEAKER: No, no, I have made a ruling. I do respect you Hon. Hwende and do not force me to do what I do not enjoy doing.
HON. HWENDE: No. no, I want you to clarify.
THE ACTING SPEAKER: I have already made a ruling on that issue.
HON. HWENDE: No. no, you did not respond to Hon. Mliswa’s question. He asked a very simple question which was, if something is referred by the Court to Parliament, did you announce it in Parliament that you were directed by the Constitutional Court to reconsider this. You did not announce and you must accept it. There is no way that a court order can fly from the court straight to a committee. So, we just want you to clarify on that simple matter. If Parliament has been directed by the court, does it go straight to the PLC or the Speaker announces that we have been ordered by the court to consider this matter. If that can be clarified, then we will be happy to proceed.
THE ACTING SPEAKER: Hon. Hwende, the procedures were followed. I think that is my final answer pertaining to this issue. Thank you very much.
