Source: Madhuku trashes CAB 3 Senate amendments -Newsday Zimbabwe
CONSTITUTIONAL lawyer Lovemore Madhuku has dismissed the National Assembly’s adoption of Senate amendments to the controversial Constitution Amendment Bill No. 3 (CAB3), describing the process as “heavily flawed” and arguing that legislators approved what he termed a “nullity”.
Madhuku was speaking to NewsDay shortly after the Bill cleared its final parliamentary hurdle on Tuesday after legislators reconsidered amendments made by the Senate during an extraordinary sitting convened by President Emmerson Mnangagwa.
The Bill, which had been recommitted by the Senate for further consideration after several amendments were proposed, was approved by 226 votes, while 41 opposition Citizens Coalition for Change (CCC) legislators voted against it.
It will now be transmitted to President Mnangagwa for assent.
However, Madhuku said the manner in which the Senate introduced the amendments violated constitutional law-making procedures and would form the basis of another court challenge.
“They were delaying us from our own processes to challenge them. They were failing to constitutionally follow their own parliamentary processes. The amendments by the Senate were not competent. They approved a nullity in the National Assembly today,” Madhuku told NewsDay.
“They are saying they are amendments, but it seems the Senate had its own Bill, which was not put to the people.
“There were consultations that were held, but they came up with completely new provisions in the form of amendments. I will not list all the flaws. This is another third case that we are going to lodge.”
He said what Parliament described as corrective amendments had instead created fresh constitutional contradictions.
“They said they wanted to correct some anomalies, but these amendments are just the tip of the iceberg.
“There are contradictions left, right and centre emanating from them hurrying the law-making process, particularly on this Bill.
“It required much more intellect than they used in the hurried process.
“They made a bigger mistake trying to correct the error they made. Senate had no authority to make amendments of that nature.”
Madhuku singled out the Senate’s amendment to Section 145 of the Constitution, arguing that it fundamentally altered the constitutional framework instead of merely correcting drafting errors.
The amendment repeals and substitutes Section 145, titled “First sitting of Parliament following a general election”, to provide that: “The first sitting of Parliament after a general election must take place on a date determined by the Clerk of Parliament through a notice published in the Government Gazette, but not later than 14 days after election results have been declared.
“Until the election of the Speaker of the National Assembly and the President of the Senate, the first meeting of each House must be presided over by the Clerk of Parliament.”
According to Madhuku, those changes introduce an entirely new constitutional arrangement that could not lawfully originate as Senate amendments.
“For example, to say that the Clerk of Parliament will convene the first sitting of Parliament after a general election is a fundamental provision of the Constitution which can never be legislated at the point at which they did that. It requires debate.”
He questioned why Parliament had entrusted such constitutional authority to the Clerk of Parliament.
“The Clerk of Parliament does not have a recognisable deputy. What if he is intimidated or he runs away?
“It is different from the office of the Chief Justice because that office is constitutionally entrenched and we know what happens if the Chief Justice is unavailable.
“But the Clerk of Parliament is simply an official whose office has no constitutional independence. It does not represent any institution.
“Imagine the stupidity of not realising that the outgoing Speaker would still be there. What if the Clerk is manipulated? No country is run in such a way.”
Madhuku maintained that such a substantive constitutional amendment could not lawfully emerge during the Senate committee stage.
“It can’t start from the Senate committee stage.
“This is just one example. More flaws will be highlighted in court.”
The constitutional law expert said yesterday’s proceedings would now give litigants fresh grounds to challenge the legislation before the courts.
CAB 3 has sparked intense political and legal debate as it seeks to make sweeping changes to Zimbabwe’s constitutional framework.
Among its key provisions, the Bill seeks to extend Mnangagwa’s term of office, as well as the tenure of the current Parliament and local authorities, by two years until 2030.
It also proposes increasing the electoral term for future presidents, Parliament and local authorities from five years to seven years.
The Bill further seeks to amend the Constitution to allow a vacancy in the office of President to be filled through a joint sitting of the National Assembly and Senate instead of by a national election.
The Bill first passed the National Assembly with 216 votes after receiving support from 34 legislators aligned to self-imposed CCC secretary-general Sengezo Tshabangu before being recommitted by the Senate for amendments.
Despite clearing Parliament, the legislation is expected to face further legal hurdles.
Several court challenges against CAB 3 are already pending, while some constitutional lawyers argue that the proposed amendment to Section 328(7), a protected constitutional provision, cannot become law through presidential assent alone and must first be approved by Zimbabweans in a national referendum conducted by the Zimbabwe Electoral Commission.
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