The President of the Senate and Others v Innocent Gonese and Others

On 31 March 2020, the Constitutional Court issued judgment CCZ 4/2020 declaring that the Senate's passing of Constitutional Amendment Bill (No. 1) of 2017 on 1 August 2017 was unconstitutional for failing to achieve the required two-thirds majority. The Court set aside the Senate proceedings and directed the Senate to conduct a proper vote within 180 days. The 180-day period commenced on 1 April 2020. On the very next day, 1 April 2020, Zimbabwe entered a national COVID-19 lockdown. Initially, Parliament was not classified as an essential service and could not convene at all. When regulations were later relaxed, restrictions limited gatherings to fewer than 50 people, below the quorum required for passing constitutional amendments. The 180-day period expired on 28 September 2020 without compliance. On 25 September 2020, the applicants filed an urgent ex parte application for an extension, which was provisionally granted on 28 September 2020 and confirmed with consent on 6 October 2020. The main application sought an extension of the 180-day period. Parliament had been dissolved in July 2018 for general elections.

• Whether the applicants (President of the Senate, Parliament, and Speaker of the National Assembly) had locus standi to bring the application for extension
• Whether the order sought was unconstitutional due to the operation of section 147 of the Constitution, which provides that all Bills lapse upon dissolution of Parliament
• Whether good cause existed to extend the 180-day period given COVID-19 lockdown restrictions
• Whether the Court could extend or modify its earlier final order without improperly reviewing its own decision
• The application of the principle of finality of decisions of apex courts
• Whether granting the extension would violate constitutional supremacy under section 2 of the Constitution

Application granted. The 180-day period referred to in paragraph (b) of the order of 31 March 2020 was extended by a further 90 days from the date of judgment (25 February 2021). Each party to bear its own costs. Gowora AJCC dissenting (would have dismissed the application with no order as to costs).

The binding principles established are: (1) The Constitutional Court, constituted by three or more judges under section 166(3)(b), has jurisdiction to hear applications relating to orders previously made by the full bench where the matter does not concern fundamental rights or presidential elections. (2) Parties who were respondents in original proceedings retain locus standi in applications that are continuations of those proceedings, regardless of separation of powers considerations. (3) The Constitutional Court cannot review, overturn, or declare unconstitutional its own final orders in the same matter based on the same cause of action; the principle of finality of apex court decisions must be preserved. (4) An application to extend the time for compliance with a court order is a continuation of the original proceedings and partakes of the constitutional character of the original order. (5) Where the constitutionality of an extension order cannot be determined without impliedly reviewing the constitutionality of the original order, such constitutional challenge is incompetent in the same proceedings. (6) COVID-19 lockdown restrictions that lawfully prevented Parliament from achieving quorum constitute reasonable grounds for extending time to comply with court directives.

Makarau AJCC observed that while the constitutionality of the order could not be debated in this application, it may be debated in an appropriate future matter where the interpretation of section 147 is the cause of action, as the Constitutional Court is not bound by its previous decisions. Patel AJCC made important cautionary observations: success in this application does not license violation of the Constitution; the applicants remain obligated to comply with all relevant constitutional provisions including section 147 when implementing the order; any act in violation of the Constitution remains a nullity even if purportedly done in compliance with a court order; and certain provisions in Constitutional Amendment Bill (No. 2) of 2019 relating to judicial appointments are predicated on Bill No. 1 being enacted in its present form, which the applicants must consider. Gowora AJCC (dissenting) observed that the Constitution demands strict compliance with all its provisions including procedural requirements, and that anything done in contravention of the Constitution is a nullity. The majority judgment noted that the absence of a Constitutional Court Act equivalent to section 26 of the Supreme Court Act is of no import to the finality principle.

This case addresses critical questions about the finality of Constitutional Court decisions and the limits of the Court's power to review or modify its own orders. It establishes that the Constitutional Court, as apex court on constitutional matters, cannot review or overturn its own final orders in the same matter based on the same cause of action, even when constitutional concerns arise about the implementation of such orders. The case also highlights tensions between judicial orders and supervening constitutional provisions (such as section 147 on lapsing of Bills). The judgment demonstrates the importance of the principle of finality in constitutional litigation and the doctrine of stare decisis in preserving legal certainty. The dissenting opinion importantly raises unresolved questions about whether Bills declared invalid can be revived after parliamentary dissolution, an issue the majority effectively defers to future litigation. The case also illustrates judicial responses to extraordinary circumstances (COVID-19) affecting constitutional obligations.