Ignatious Chombo v Parliament of Zimbabwe and Others

In October 2011, the fifth and sixth respondents, Members of Parliament for Buhera Central and Highfield West Constituencies respectively, brought a motion in Parliament to introduce a private members' Bill - the Urban Councils Amendment Bill H.B.5. 2011. The purpose of the Bill was to reduce the powers of the Minister of Local Government over municipal and town Councils. The motion was accepted and the Bill was introduced into Parliament in early 2012. In March 2012, the applicant, who was the Minister of Local Government, Rural and Urban Development, a Member of Parliament and a Cabinet Minister, wrote to the second and third respondents expressing his view that it was incompetent for private members to introduce the Bill and that the responsibility to do so lay with Cabinet. The fourth respondent responded that it was still permissible for a Member of Parliament to introduce a private Bill. Parliament continued with the necessary procedures for debating the Bill, prompting the applicant to bring this constitutional application under s 24(1) of the Constitution, seeking a declaration that the introduction of the Bill was null and void.

• Whether the applicant, in his capacity as Cabinet Minister, Member of Parliament and citizen, had locus standi to bring a constitutional application under s 24(1) of the Constitution
• Whether a Cabinet Minister, as part of the State, can sue Parliament which is another arm of the State
• Whether a private member of Parliament can lawfully introduce a Bill in Parliament in light of the provisions of Schedule 4 and Schedule 8 of the Constitution
• Whether the Urban Councils Amendment Bill dealt with government policies and programmes such that only Cabinet could introduce it under the Interparty Political Agreement incorporated into Schedule 8 of the Constitution

The introduction of the Urban Councils Amendment Bill HB.5.2011 was declared to be inconsistent with ss 18(1) and 18(1a) of the Constitution in that it was ultra vires clause 20.1.2 of the 8th Schedule of the Constitution of Zimbabwe and therefore null and void. The respondents were ordered to pay the costs of the application jointly and severally, the one paying, the others to be absolved.

During the subsistence of the Interparty Political Agreement incorporated into Schedule 8 of the Constitution, Cabinet has the exclusive responsibility to prepare and present to Parliament all legislation necessary to implement government policies and programmes. Private members of Parliament are prohibited from introducing Bills that deal with government policies and programmes, but retain the right to introduce Bills that do not deal with such policies and programmes (subject to financial restrictions in Schedule 4). A Cabinet Minister has locus standi to approach the court under s 24(1) of the Constitution where his ministerial powers and functions are affected by allegedly unconstitutional conduct. In an appropriate case, a Cabinet Minister can institute proceedings against another arm of the State. Parliament and its officers have a constitutional duty under s 18(1a) to exercise their functions in accordance with the law and to uphold the rule of law.

The Court observed that the drafting of the Interparty Political Agreement could have been refined and more elegantly worded, particularly when it was decided to incorporate it into the Constitution. The Court also noted that the intention behind the constitutional provisions was to ensure that during the transitional period steered by three political groupings, private members would not be permitted to upset the inclusivity of decisions by introducing legislation dealing with government policies and programmes without Cabinet involvement. The Court stated that what was intended was to have legislation thrashed out and agreed to at Cabinet level with the polished product then presented by a Cabinet member in Parliament.

This case is significant in Zimbabwean constitutional law as it clarified the division of powers between Cabinet and Parliament during the transitional period under the Interparty Political Agreement. The judgment established important principles regarding: (1) the locus standi of Cabinet Ministers to bring constitutional challenges where their official powers are affected; (2) the ability of one arm of the State to sue another in appropriate circumstances; and (3) the supremacy of the constitutional provisions incorporating the Interparty Political Agreement over other constitutional provisions during its subsistence. The case demonstrates the court's role in policing the boundaries of constitutional power-sharing arrangements and ensuring compliance with the rule of law. It also provides guidance on the interpretation of private members' rights to introduce Bills versus Cabinet's exclusive responsibility to introduce legislation on government policies and programmes under the power-sharing arrangement.