Race to save Zim’s constitution

When President Emmerson Mnangagwa took over power from the late Robert Mugabe via a November 2017 military coup, he promised to preserve the constitution and to respect the rule of law. Less than five years into his rule, Mnangagwa has made over 27 changes to the constitution which was adopted through a popular vote in 2013.

However, 15 of those changes are being challenged in the courts.

Cases against the amendments include accusations that reasons for changes are nothing more than an attempt by Zanu PF and its leadership to cling to power against the wishes of the people.

Constitutional Amendment No 1 gives Mnangagwa the power to appoint judges without having to consult through public interviews.

Constitutional Amendment No 2 brings 27 changes to the constitution, possibly the biggest alteration to the governance charter in the history of the country coming in one fell swoop.

The amendments scrapped from the statutes the running mate clause, giving Mnangagwa the leeway to appoint his deputies.

It whittled down the powers of Parliament and gave the president unchecked powers over the judiciary, among other changes.

This raft of changes produced a constitutional crisis when Mnangagwa extended the term of Chief Justice Luke Malaba by five years after he reached the mandatory retirement age of 70.

The new law extends the retirement age of judges to 75.

Musa Kika, the Zimbabwe Human Rights NGO Forum executive director, challenged Justice Malaba’s extended term and High Court judges Justices Happias Zhou, Edith Mushore and Jester Charewa ruled that the chief justice could not benefit from the amendments.

Despite the ruling, Malaba reported back to work and Kika filed a contempt of court case against him.

He sought to have Malaba fined $1 000 000 or be committed to Chikurubi Maximum Security Prison for a period of six months for contempt of court.

The matter was set down for hearing on June 1, 2021 and ruling on the matter was postponed to June 24, 2021.

The application was dismissed with the judge ruling that the appointments made by the president were lawful and, therefore, the court could not interdict lawful conduct.

Then, on May 17, 2021, the government filed an appeal at the Supreme Court against Justice Zhou’s ruling.

The matter has not been set down for hearing. Justice minister Ziyambi Ziyambi said Kika had no locus standi to obtain the relief granted by the court in the absence of a violation or potential violation of his right to equal protection of the law.

In the Musa Kika vs Luke Malaba, Minister of Justice, Legal and Parliamentary Affairs, Judicial Service Commission (JSC) and Attorney General case, Kika sought leave to execute the judgement in HC 2128/2021, where the court ruled that the chief justice ceased to hold office at 04:00 hours on May 15 despite the provisions of the constitution of Zimbabwe Amendment No.2 Act.

He, however, has since withdrawn the case. On May 17, the Attorney General also appealed to the Supreme Court against the High Court ruling that declared that Malaba could not benefit from the enactment of Constitutional Amendment No 2.

Marx Mupungu went to court on June 4 seeking an order to have Justice Malaba stay as the chief justice.

Mupungu’s legal practitioner wrote to the registrar on June 7 requesting that the application be placed before the chief justice or deputy chief justice so that a decision could be made as to the urgency of the application.

The deputy chief justice refused to recuse herself and will hear the application.

The NGO Forum filed a notice of opposition on June 18 and the matter has been set down for July 14, 2021.

Chamunorwa Chingwe also sued the JSC seeking an order to stop the appointment of any substantive judges of either the Supreme Court or the Constitutional Court without following the process in Section 180(4) of the constitution.

A record 16 cases, according to a case tracker by the NGO Forum: Court Challenges on Constitution of Zimbabwe Amendment (No.1) Act and Constitution of Zimbabwe Amendment (No.2) Act, have been filed before the court to challenge Mnangagwa’s amendments.

Some of the amendments passed through the legislature with the assistance of the Douglas Mwonzora-led opposition MDC-T.

The first battle for the constitution was launched by MDC Alliance MPs, Innocent Gonese and Jessie Majome who successfully challenged Parliament and Mnangagwa over the passing of Constitution of Zimbabwe Bill (No.1) in September 2017.

But following the passing of Constitutional Amendment Bill No 1 and 2 early this year, halfway into the year, the courts have been flooded with cases challenging the amendments.

In case No, 09/2021 between the Law

Society of Zimbabwe v Parliament of Zimbabwe and five others, the lawyers challenged both constitutional amendments arguing that Parliament failed to fulfil its constitutional obligation in passing the pieces of legislation. Parties are still exchanging pleadings. Former Justice minister Eric Taurai Matinenga also approached the courts in June suing Malaba for failing to fulfil their constitutional obligations in passing Constitutional Amendment No.1 of 2017 and Constitutional Amendment No.2 of 2021 in breach of Section 167(2) (d) of the constitution.

Matinenga is seeking an order declaring the constitutional amendments invalid and unconstitutional and that they be set aside on the basis that they breach the values and principles enshrined in Section 2 and 3 of the constitution.

The matter is recorded under No.

CCZ4/2020.

Godfrey Sithole, an MDC Alliance legislator, also sued Mwonzora and 67 MDCT senators under case No 12/2021, accusing them of failing to exercise their legislative role as provided for in the constitution by passing a law that lapsed in July 2018.

Sithole is seeking to have Constitutional Amendment 1 set aside.

The matter is yet to be set down for hearing.

The Zimbabwe Human Rights Association also took the Parliament of Zimbabwe to court seeking an order declaring the Constitution of Zimbabwe (Amendment No.2) Act, 2021 invalid because Parliament failed to follow the procedure set out in terms of section 328(3) and (4) of the constitution.

The matter is recorded under Case No 10/2021 and parties are exchanging pleadings.