In August last year the High Court Rules were amended by SI 153/2023 to allow court papers to be filed and served electronically and cases to be heard virtually.
What this means is that court papers are to be filed and served electronically through the Judicial Service Commission’s Integrated Electronic Case Management [IECMS] platform, and civil and criminal cases can be heard by electronic means which allow the judges and parties to see each other even though they are not physically in the same place.
If a judge so orders, criminal and civil cases have to be heard virtually even if the parties want a physical hearing. On the 26th February this year, according to the amendments, the High Court became a fully paperless court, “save in exceptional circumstances authorised by a Judge”.
In other words, on and after the 26th February all court papers have to be filed and served electronically unless a judge considers there are exceptional circumstances justifying their being filed or served by some other means.
However, on the 1st February the Parliamentary Legal Committee (PLC), delivered a report that found many of the operative provisions of the amendments inconsistent with the Constitution and/ or the enabling Act, i.e. the High Court Act.
On the 8th February the National Assembly voted to adopt the report, meaning that the Assembly agreed with the PLC that the amendments were unconstitutional.
The Main Findings of the PLC Report Were as Follows:
Electronic filing of documents
Requiring documents to be filed electronically, the Committee said, does not take account of Zimbabwe’s level of technological development and disregards the fact that most of our population live in rural areas without access to computers or the Internet.
Hence, in the Committee’s view, the proposed amendments violate sections 68 and 69 of the Constitution.
Constitutional watchdog Veritas Comments: Section 68 of the Constitution guarantees a right to administrative conduct that is lawful, reasonable, efficient and fair.
Although Court proceedings are not usually regarded as administrative conduct, filing court papers or preventing people from filing court papers can be considered administrative rather than judicial conduct.
Perhaps even more importantly the amendments violate section 69 of the Constitution, which guarantees:
· to all accused persons, a right to a public trial within a reasonable time,
· to everyone involved in a civil dispute, the right to a speedy and public hearing before a court or tribunal, and
· to everyone, a right of access to the courts.
Each and every one of these rights is violated by the amendments:
· There is no provision for the public to attend virtual hearings in civil or criminal cases, and no apparent way for the public to get access to documents filed electronically.
Virtual trials and hearings will not be “public”, as required by section 69 of the Constitution.
· As pointed out by the PLC, virtual trials and hearings may not be speedy either, because of poor internet connectivity and erratic power supply. According to the PLC, experience has shown that virtual hearings generally take longer than physical hearings.
· People who do not have equipment to get access to the IECMS platform are effectively denied access to the courts.
Bail applications
The PLC considered that in so far as the amendments apply to criminal matters, and particularly to bail hearings, they violate sections 49 and 50(6) of the Constitution which protect the rights to personal liberty and bail.
As the Committee pointed out, most accused persons cannot access the IECMS platform and so are unable to file their applications and appeals electronically.
Comment: The amendments which the PLC was considering are authorised by the Judicial Laws Amendment Act, which was passed by Parliament last year. Veritas analysed that Act in Bill Watch 34/2022 and made the same point that the PLC has made: it is unconstitutional for bail proceedings to be heard virtually, unless:
· The public have access to the proceedings, and
· The accused persons consent to the proceedings being held virtually – and their consent must be given freely and with full knowledge of all the implications.
The same applies to remand proceedings: one important reason why accused persons who are in detention have to be brought physically before a court at regular intervals to be remanded or to apply for bail is so that the court and the public can see they are alive and have not been assaulted or mistreated.
This cannot be done if all a judicial officer can see of the accused is a distorted face on a fuzzy computer screen, and if the public can’t see or hear the accused at all.
The National Assembly’s Resolution
As we said earlier, on the 8th February the National Assembly voted to adopt the PLC’s adverse report. What happened, according to the day’s Hansard, was that the chairman of the PLC read out the report to the committee of the whole House, whereupon the Deputy Minister of Justice said he did not object to the report and that his Ministry would sit down with the Judicial Service Commission and come up with necessary changes to SI 153/2023.
The House then resolved, at the motion of the Deputy Minister:
“that this House having given consideration to the report of the Parliamentary Legal Committee on Statutory Instrument 153 of 2023, … resolves that the Statutory Instrument would, if enacted, be in contravention of the declaration of rights and some provisions of the Constitution.” (the underlining is ours)
Problems with the Resolution
The National Assembly’s resolution was not in accordance with the Constitution. To understand why, one must remember that the PLC has two related but distinct functions:
- The Committee must examine all Bills going through the House to see if their provisions, if enacted, would contravene the Constitution. These are Bills which have not yet been passed by Parliament, so they have not been enacted into law.
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The Committee must also examine all statutory instruments published in the Gazette, again to see if their provisions contravene the Constitution. These instruments have been published in the Gazette and so they have already been enacted into law.
Because of this difference between Bills and SIs – that Bills have not been enacted while SIs are already law – the consequences of an adverse report are different:
· Under para 8 of the Fifth Schedule to the Constitution, if the House resolves that a provision of a Bill, if enacted, would contravene the Constitution then Parliament must not pass the Bill with that provision.
· Under para 9 of the same Schedule, if the House resolves that a provision of a statutory instrument contravenes the Constitution, then the Clerk of Parliament must report the resolution to the Ministry or other authority that made the SI and the authority has 21 days within which either to apply to the Constitutional Court for a ruling on the SI’s constitutionality or else to repeal the SI – the whole SI, not just the provision resolved to be unconstitutional.
So the National Assembly’s resolution in this case would have made sense for a Bill, but not for SI 153 of 2023 which had already been enacted. The Deputy Minister of Justice could not simply sit down with the judiciary and come up with necessary changes to the SI.
Within 21 days of being notified of the resolution, his Ministry had either to apply for a court order declaring the SI to be constitutional – hardly feasible after he had accepted the correctness of the PLC’s report – or else repeal the SI completely.
What Now?
It is not known if the Clerk of Parliament notified the Ministry of Justice of the PLC’s adverse report on SI 153/2023. Arguably notification was not necessary, however, because the Deputy Minister was in the House and heard the adverse report, agreed it was correct and moved the resolution accepting it: the Ministry can be presumed to be well aware of the report.
The 21-day period within which the Ministry must apply for a court order on the constitutionality of SI 153/2023 or else repeal it, expires at the end of this month – tomorrow – assuming that the Ministry became aware of the National Assembly’s resolution the day after it was passed.
The Ministry has not yet applied to the Constitutional Court for an order that the SI is constitutionally valid, and it is unlikely to do so after the Deputy Minister agreed the SI was unconstitutional.
Will the Ministry repeal SI 153/2023? We do not know, but perhaps more important is the question: what if the Ministry does not repeal it?
The Constitution is silent on that point, but the clear implication of para 9 of the Fifth Schedule is that an SI becomes invalid after the 21-day period has expired even if it is not formally repealed by the authority that made it.
If that were not the case an SI which Parliament has resolved is unconstitutional would remain in operation indefinitely at the whim of a Minister or other authority who refused to repeal it.
For that reason Veritas suggests that even if SI 153/2023 is not formally repealed it will become invalid after the end of February.
That is only a suggestion, however, and until there is a statement from the Clerk of Parliament as to whether and when notification was sent to the Ministry of Justice in terms of para 9 of the Fifth Schedule to the Constitution, or a statement from the Ministry of Justice as to whether and when SI 153/2023 will be repealed, the status and future of the SI remains unclear.
Conclusion
The uncertainty about the fate of SI 153/2023 is most undesirable. As we noted earlier, the SI declares that as from the 26th February the High Court is to become an entirely paperless court and that all court process is to be filed electronically.
Is that still the case? Probably not, but no one can know for sure. It is important for everyone to know, because litigants can be “non-suited” – i.e. have their cases dismissed – if their papers are filed improperly.
While the uncertainty persists, a party that tries to file papers physically in a High Court registry may be turned away by the registrar, relying on the SI which requires electronic filing; on the other hand, a party that files papers electronically may be challenged by the other party on the ground that the SI has ceased to be valid and the method of filing is unconstitutional. Litigation may be tied up in procedural knots, a lose-lose situation all round.
The Ministry of Justice and the Judicial Service Commission, which manages the courts, should clarify the position without delay – preferably by repealing SI 153/2023.
Veritas Zimbabwe
