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Constitution of Zimbabwe Amendment (No. 17) Act, 2005
September 16, 2005

See the Constitution of Zimbabwe Amendment (No. 17) Bill, 2005
See the amended Constitution of Zimbabwe

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Gazetted in the Government Gazette Extraordinary on the 14th September, 2005. Published in General Notice 373D of 2005, 16th September, 2005.

Notes on Commencement

The effect of section 24(2) is that certain amendments come into operation immediately (i.e., on the 16th September, 2005), while others, principally those concerning the introduction of the Senate but including section 17 concerning the Electoral Supervisory Commission and the Zimbabwe Electoral Commission, will not come into full operation until the Senate has been duly elected and constituted in terms of section 24(1) as read with the Second Schedule. It is not stated how the date of commencement of the full operation of the second group of amendments will be officially identified and notified to the public. Individual footnotes in the document indicate the provisions coming into operation the 16th September, 2005.

In this Act, section 24(2) makes fairly complex provision for its commencement, the effect of which can be summed up as follows:

Some provisions came into force immediately, i.e., with effect from 14th September 2005. These provisions are:

• sections 2 and 22, which are concerned with the compulsory acquisition of land
• section 3, which amends section 22 of the Constitution (permitting additional restrictions on freedom of movement)
• section 4, which amends section 23 of the Constitution (extending the scope of protection from discrimination)
• section 18, which permits the extension by Act of Parliament of the functions of the Judicial Service Commission to embrace functions in connection with the employment, discipline and conditions of service of persons employed in the Supreme Court, the High Court and courts subordinate to those courts (e.g., the Administrative Court and the magistrates courts) and in the office of the Ombudsman
• section 19, (new definition of "voter" only) and section 20 (stating qualifications for members of the Senate)
• Part I of the First Schedule (minor amendments related to the above)
• the Second Schedule and, by necessary implication, much of section 24, which provide for transitional matters, particularly the election and appointment of the first Senators.

The remainder, all dealing with or incidental to the introduction of the Senate, will come into full operation only once the Senate is duly elected and constituted in terms of the special transitional provisions contained in section 24(1) as read with the Second Schedule. That seems to be the effect of section 24(2), but a note of doubt is introduced by the heading to Part II of the First Schedule, which, curiously, envisages the minor amendments specified in that Part coming into operation on the date of publication of the President's proclamation setting in motion the machinery for the election of the first Senators; as those minor amendments are all incidental to the introduction of the Senate, it is not clear why they should commence earlier than the major amendments on the subject.

Section 17 of Amendment No. 17 is NOT one of the sections coming into operation immediately, as listed in the proviso to section 24(2) of Amendment No. 17.

The effect of this is that for the time being, and in particular for the purposes of the forthcoming Senate elections, both the Electoral Supervisory Commission (as constituted by section 61 of the Constitution unaffected by Amendment No. 17) and the "old-style" Zimbabwe Electoral Commission (as constituted by the ZEC Act) will be in existence .

Only once the Senate has been "elected and constituted" (see section 24(2) of Amendment No. 17) will section 17 come into operation. Only then will the ESC disappear and the ZEC be transformed into the new ZEC provided for in the new section 61 of the Constitution enacted by section 17 of Amendment No. 17.

As regards the machinery for giving effect to the new constitutional provisions for the Senate, this is set out in the Second Schedule to the Act. According to paragraph 4 of that Schedule, the process must be set in motion by a proclamation to be published in the Government Gazette not later than the 13th December, 2005 (which is ninety days after the date of commencement of the Act). The proclamation, which will be made by the President, will call for nominations and fix the polling date for the elections to be held for the fifty "constituency" Senatorial seats, and also fix dates on which the provincial electoral colleges of Chiefs will meet to elect the eight elected Senator Chiefs.
Also to be anticipated, given the provisions of paragraph 2 of the Second Schedule, are statutory instruments made by the Electoral Supervisory Commission, with the approval of the Minister of Justice, Legal and Parliamentary Affairs; those statutory instruments will modify the Electoral Act and the Electoral Commission Act in order to cater for the election of Senators. At least the most important of those statutory instruments will, presumably, be published before the election proclamation.

24 Transitional provisions

(1) The Second Schedule applies with respect to the first election of Senators in terms of section 34(1)(a) and (c) of the Constitution.

(2) Until the Senate is duly elected and constituted in terms of subsection (1), the Constitution as it applied immediately before the date of commencement of this Act shall continue in force, except for the following provisions of this Act, which shall come into force immediately on the date of its commencement:

Sections 2, 3, 4 and 18, the definition of “voter” inserted into section 113 of the Constitution by section 19(a), sections 20 and 22, Part I of the First Schedule,
and the Second Schedule.

(3) Any Standing Orders which were in force immediately before the date of commencement of this Act shall, on and after that date, continue in force in all respects as if they had been made in terms of section 57 of the Constitution and, until such time as they are amended or repealed accordingly, the Speaker may apply them subject to such modifications as appear to him or her to be necessary to extend their application to the Senate.

(4) Every person who, immediately before the date of commencement of this Act, was a member of Parliament by virtue of being elected or appointed in accordance with the Constitution immediately before the date of commencement of this Act shall, on the date when the Senate is duly elected and constituted in terms of subsection (1), become a member of the House of Assembly as though he or she had been appointed or elected in accordance with the Constitution as amended on that date.

ACT
To amend the Constitution of Zimbabwe.

ENACTED by the President and the Parliament of Zimbabwe.

1 Short title
This Act may be cited as the Constitution of Zimbabwe Amendment (No. 17) Act, 2005.

2 New section inserted in Constitution²
The Constitution is amended by the insertion after section 16A of the following section—

“16B Agricultural land acquired for resettlement and other purposes

(1) In this section—
“acquiring authority” means the Minister responsible for lands or any other Minister whom the President may appoint as an acquiring authority for the purposes of this section;
“appointed day” means the date of commencement of the Constitution of Zimbabwe Amendment (No. 17) Act, 2005³.

(2) Notwithstanding anything contained in this Chapter—

(a) all agricultural land—

(i) that was identified on or before the 8th July, 2005, in the Gazette or Gazette Extraordinary under section 5(1) of the Land Acquisition Act [Chapter 20:10], and which is itemised in Schedule 7, being agricultural land required for resettlement purposes; or
(ii) that is identified after the 8th July, 2005, but before the appointed day, in the Gazette or Gazette Extraordinary under section 5(1) of the Land Acquisition Act [Chapter 20:10], being agricultural land required for resettlement purposes; or
(iii) that is identified in terms of this section by the acquiring authority after the appointed day in the Gazette or Gazette Extraordinary for whatever purpose, including, but not limited to—
A. settlement for agricultural or other purposes; or
B. the purposes of land reorganization, forestry, environmental conservation or the utilization of wild life or other natural resources; or
C. the relocation of persons dispossessed in consequence of the utilization of land for a purpose referred to in subparagraph A or B;
is acquired by and vested in the State with full title therein with effect from the appointed day or, in the case of land referred to in subparagraph (iii), with effect from the date it is identified in the manner specified in that paragraph; and

(b) no compensation shall be payable for land referred to in paragraph (a) except for any improvements effected on such land before it was acquired.

(3) The provisions of any law referred to in section 16(1) regulating the compulsory acquisition of land that is in force on the appointed day, and the provisions of section 18(1) and (9), shall not apply in relation to land referred to in subsection (2)(a) except for the purpose of determining any question related to the payment of compensation referred to in subsection (2)(b), that is to say, a person having any right or interest in the land—

(a) shall not apply to a court to challenge the acquisition of the land by the State, and no court shall entertain any such challenge;
(b) may, in accordance with the provisions of any law referred to in section 16(1) regulating the compulsory acquisition of land that is in force on the appointed day, challenge the amount of compensation payable for any improvements effected on the land before it was acquired.

(4) As soon as practicable after the appointed day, or after the date when the land is identified in the manner specified in subsection (2)(a)(iii), as the case may be, the person responsible under any law providing for the registration of title over land shall, without further notice, effect the necessary endorsements upon any title deed and entries in any register kept in terms of that law for the purpose of formally cancelling the title deed and registering in the State title over the land.

(5) Any inconsistency between anything contained in—

(a) a notice itemised in Schedule 7; or
(b) a notice relating to land referred to in subsection (2)(a)(ii) or (iii);
and the title deed to which it refers or is intended to refer, and any error whatsoever contained in such notice, shall not affect the operation of subsection (2)(a) or invalidate the vesting of title in the State in terms of that provision.

(6) An Act of Parliament may make it a criminal offence for any person, without lawful authority, to possess or occupy land referred to in this section or other State land.

(7) This section applies without prejudice to the obligation of the former colonial power to pay compensation for land referred to in this section that was acquired for resettlement purposes.”.

3 Amendment of section 22 of Constitution⁴
Section 22 (“Protection of freedom of movement”) of the Constitution is amended—

(a) in subsection (3)(a) by the deletion of “in the interests of defence, public safety, public order, public morality or public health” and the substitution of “in the national interest, or in the interests of defence, public safety, public order, public morality, public health, the public interest or the economic interests of the State”;
(b) in subsection (4) by the deletion of “preventing any person from leaving Zimbabwe or”.

4 Amendment of section 23 of Constitution⁵
Section 23 (“Protection from discrimination on the grounds of race, etc.”) of the Constitution is amended—

(a) in subsection (2) by the deletion of “or gender” wherever it occurs and the substitution of ", sex, gender, marital status or physical disability";
(b) in subsection (3)—

(i) by the repeal of paragraph (a) and the substitution of—
"(a) matters of personal law;";
(ii) in paragraph (d) by the deletion of “or gender” and the substitution of ", sex, gender, marital status or physical disability";
(iii) by the insertion of the following paragraph after paragraph (f)—

“or

(g) the implementation of affirmative action programmes for the protection or advancement of persons or classes of persons who have been previously disadvantaged by unfair discrimination.”;

(c) by the insertion of the following subsection after subsection (3)—

"(3a) Notwithstanding subsection (3)(b), in implementing any programme of land reform the Government shall treat men and women on an equal basis with respect to the allocation or distribution of land or any right or interest therein under that programme.";

(d) in subsection (5) by the deletion of "or gender" wherever it occurs and the substitution of "sex or gender".

5 Amendment of section 31F of Constitution
Section 31F (“Vote of no confidence in Government”) of the Constitution is amended by the repeal of subsection (1) and the substitution of—

“(1) Parliament may, by resolution supported by the votes of not less than two-thirds of all the members of each House, pass a vote of no confidence in the Government.”.

6 New section inserted in Constitution
Chapter V of the Constitution is amended by the insertion in Part I of the following section after section 32—

“33 Parliament
Parliament shall consist of two Houses, called the Senate and the House of Assembly.”.

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2 into operation with effect from the 16th September, 2005.
3 i.e. the 16th September, 2005.
4 into operation with effect from the 16th September, 2005
5 into operation with effect from the 16th September, 2005

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