Innocent Gonese and Jessie Majome v President of Zimbabwe and Others

The applicants, both members of Parliament and of the Parliamentary Legal Committee (PLC), challenged the constitutional validity of the Local Government Amendment Act No. 8 of 2016. They alleged that the Act was passed in violation of constitutional obligations in three respects: (1) the Bill was not published in the Gazette 14 days before introduction in Parliament contrary to Standing Order 134; (2) it was not properly presented to and examined by the PLC as required by section 152(3)(a) of the Constitution; and (3) the requirement of section 141 of the Constitution to provide public access and public hearings was not complied with in Harare Province, with allegations of violent intimidation at public hearings. The applicants also initially alleged that the Act failed to provide for independent tribunals as required by section 278(2) of the Constitution, but abandoned this ground at the hearing.

• Whether the Constitutional Court has exclusive jurisdiction under section 167(2)(d) to determine allegations that Parliament or the President failed to fulfill constitutional obligations in the legislative process
• Whether the applicants have locus standi to challenge legislation in which they participated as members of Parliament
• Whether the Local Government Amendment Bill was properly gazetted in accordance with Standing Order 134
• Whether the Bill was duly examined by the Parliamentary Legal Committee in accordance with section 152(3)(a) of the Constitution
• Whether the constitutional requirement of public participation in the legislative process under section 141 was satisfied in respect of Harare Province

The Court referred the question of whether public hearings in Harare Province were conducted in a manner enabling the public to reasonably and adequately express their views to the Judge President of the High Court for investigation and determination. The High Court was directed to adopt appropriate procedures, prepare a report with findings, and submit it to the Constitutional Court. Costs of the High Court proceedings were reserved as costs in the cause.

The binding legal principles established are: (1) The Constitutional Court has exclusive jurisdiction under section 167(2)(d) to determine whether Parliament has failed to fulfill constitutional obligations in the legislative process where the questions raised are primarily political and intrude into the domain of Parliament, implicating separation of powers. (2) The constitutional obligations to facilitate public participation (section 141) and to have the PLC examine Bills (section 152(3)) are substantive constitutional duties, not merely procedural prerequisites. (3) Members of Parliament have locus standi to challenge alleged violations of constitutional procedures in the legislative process, both as citizens and as legislators with special duties to protect the Constitution under section 119(1). (4) Participation in parliamentary proceedings under protest does not constitute waiver of the right to challenge constitutional violations. (5) Where material disputes of fact exist concerning compliance with constitutional obligations that cannot be resolved on the papers, the Constitutional Court may refer such matters to the High Court for investigation under Rule 6 of the Constitutional Court Rules.

The Court made several non-binding observations: (1) It noted the need to find a proper balance between avoiding improper intrusions into Parliament's domain and ensuring constitutional provisions are sufficiently justiciable so as not to be rendered nugatory. (2) The Court cited extensively from South African jurisprudence, particularly Doctors for Life International v Speaker of the National Assembly, emphasizing the importance of participatory democracy and meaningful public participation in law-making processes. (3) The Court observed that public participation is "the end to be achieved" and that "the duty to facilitate public involvement will often require Parliament and provincial legislatures to provide citizens with a meaningful opportunity to be heard in the making of the laws that will govern them." (4) The Court noted that once the Speaker received and accepted the report of violent disruption of public hearings, Parliament should not have proceeded with the Bill but should have awaited findings of its own investigations. (5) The Court suggested this omission was "critical" but did not make a final determination on its constitutional implications.

This case is significant in Zimbabwean constitutional law for several reasons: (1) it clarifies the scope of the Constitutional Court's exclusive jurisdiction under section 167(2)(d) concerning failures to fulfill constitutional obligations, distinguishing between procedural prerequisites and substantive constitutional duties; (2) it establishes that obligations relating to public participation (section 141) and Parliamentary Legal Committee examination (section 152(3)) are substantive constitutional obligations subject to the Court's exclusive jurisdiction; (3) it adopts a liberal approach to locus standi in constitutional matters, affirming that members of Parliament have standing to challenge legislative procedures even when they participated under protest; (4) it emphasizes the fundamental importance of participatory democracy and public involvement in the legislative process; and (5) it demonstrates the Court's procedural flexibility in referring factual disputes for investigation by the High Court under Rule 6 of the Constitutional Court Rules.