BILL WATCH 22/2021
[6th April 2021]
The Senate is Sitting This Week
National Assembly will resume on Tuesday next week
Both Houses began a short Easter recess on Thursday 25th March. Although the National Assembly will only resume Tuesday next week, 13th March, the Senate, will meet today, Tuesday 6th March.
There are three major items on the Senate Order Paper for today:
Adoption of Virtual Standing Orders
Marriages Bill – for Minister Ziyambi s final response to Second Reading debate and for consideration of further amendments during Committee Stage
Constitution of Zimbabwe Amendment (No. 1) Bill, 2017 –for its Third Reading.
As the recessed National Assembly will not require his attention as Leader of Government Business this week, the Minister should be able to devote himself to achieving progress on all three items. We deal with these first, before moving on to other business on the Senate’s agenda today and for the rest of the week.
Virtual Standing Orders
These Virtual Standing Orders, prepared by the Committee on Standing Rules and Orders, await adoption by the Senate. Virtual and hybrid proceedings of both Houses and their committees have been taking place for some time. It is appropriate that such proceedings should he formalised and regularised under a proper set of rules – particularly when a constitutional amendment is to be considered.
The Senate has been waiting for months for the Minister to complete his response to and wind up the Second Reading debate to enable the Bill, as amended by the National Assembly, to be put to the Second Reading vote. It is nearly a year since Senators contributed to the debate, with many voicing dissatisfaction about the manner in which the Bill deals with the issues of lobola or roora and civil partnerships.
The Minister has already given a preview of his proposals in the Senate’s Votes and Proceedings for 24th March 2021 by publishing a Notice of Amendments [link] setting out the changes he suggests should be made during the Committee Stage that will come after the Second Reading vote. These are his amendments
Amendment of clause 16 [Solemnisation of customary law marriages]
The effect of this amendment is to add a question that “may” [note that “must” is not used] about lobola or roora to the questions be put to the parties and their witnesses before a customary law marriage is solemnised by a marriage officer:
“(4) A marriage officer in a customary law marriage may put to either of the parties to a proposed marriage or to the witnesses any questions relevant to the identity of the parties to the proposed marriage, to the agreements relating to marriage consideration (lobola or roora), if any, and to the existence of impediments to the marriage.”
Replacement of clause 17 [Unregistered customary law unions]
The new clause provides that an unregistered customary law union must registered by the parties “within five years of the date the union was entered into or as soon thereafter as is possible”. There is no statement about what the result of failure to meet this deadline will be, but there is an assurance that failure to register a customary law marriage will not “affect the validity of the marriage at customary law with respect to the status, guardianship, custody and rights of succession of the children of such marriage”.
Amendment of clause 41 [Civil partnerships] – replacement of clause 41(6)
The Minister’s proposal is that the following wording should replace clause 41(6), referring to the situation where a civil partnership is terminated and one of the civil partners is legally married to someone else:
“(6) Where one of the parties in a civil partnership is legally married to someone else (hereinafter called the spouse), a court applying sections 7 to 11 of the Matrimonial Causes Act to the division, apportionment or distribution of the assets of the civil partnership shall pay due regard to the rights and interests of the spouse of the civil partner and ensure that its order shall not extend to any assets which are proved, to the satisfaction of the court, to be property belonging (whether jointly or individually) to the aforesaid spouse of the civil partner”.
Constitution of Zimbabwe Amendment (No. 1) Bill, 2017
On Wednesday 24th March restored the Third Reading of this Bill to the Order Paper on a motion by the Minister of Justice, Legal and Parliamentary Affairs. It had last appeared on the Senate Order Paper late in September last year, when it lapsed at the end of the second parliamentary session. He explained that restoration had been impossible earlier because of a pending court decision, which had recently been handed down. Now that the court had given a “green light”, he said, it was possible to proceed. Although the Minister did not name the case, he must have been referring to the Constitutional Court and its decision of 25th February 2021 in The President of the Senate, the Parliament of Zimbabwe and the Speaker of the National Assembly v Innocent Gonese and Others, CCZ 1-2021 [link].
The complex background to this decision is set out in Bill Watch 20/2021 dated 31st March [link]. To avoid burdening this bulletin with a repetition, it is sufficient to say that the original Third Reading vote by the Senate [on 1st August 2017] – passing the Bill by 53 affirmative votes – was declared invalid by the Constitutional Court on 31st March last year because it had not reached the 54 affirmative votes the Court decided was necessary for the two-thirds majority of the 80-member Senate required by section 328(5) of the Constitution. The court suspended the declaration of invalidity to allow Parliament to correct its error by conducting another Third Reading vote – to achieve at least 54 affirmative votes. If a successful vote was not achieved within the 180 days, the declaration of invalidity would come into effect. Parliament failed to take advantage of this and only three days before the suspension expired, went back to the Constitutional Court with an application for an extension of the suspension. It was granted a provisional extension pending the court’s final decision. It is that final decision, delivered on 25th February, that the Minister was referring to as having given a “green light” to proceed with the Bill; the court allowed a further extension of 90 days from 25th February.
The Minister’s objective is, therefore, to have a successful Third Reading vote [i.e., one supported by the affirmative votes of at least 54 Senators] to replace the invalid Third Reading of 1st August 2017.
Note: If the vote is to be taken at a sitting where some Senators attend virtually, problems with certifying the authenticity of the vote count may arise.
It must also be noted that the Bill was a Bill of the Eight Parliament of Zimbabwe which was dissolved just before the elections and it is now the Ninth Parliament of Zimbabwe. Section 147 of the Constitution states that on dissolution of Parliament all proceedings pending at the time are terminated and every Bill, motion, petition and other business lapses. Two judges in the decision of 25th Feb drew attention to this clause. In Veritas opinion the Bill should start from scratch and go through all stages of both Houses of the Ninth Parliament.
Other Business Coming up in the Senate This Week
Take-note motions on Reports from NPA and ZHRC
These two motions, by the Minister of Justice, Legal and Parliamentary Affairs, occupy the first two places on the Order Paper for today:
Annual Report of National Prosecuting Authority for 2019
Zimbabwe Human Rights Commission Report on the National Inquiry into Access to Documentation in Zimbabwe [link].
Adjourned debates to be continued/completed
There are seven adjourned debates on the Order Paper to keep Senators busy in any time left over from the Government business being handled by Hon Ziyambi.
Question Time will be on Thursday afternoon.