Brenna Matendere

Legal expert, Tendai Biti, on Wednesday 2 February 2022 told the Constitutional Court that powers bestowed on President Emmerson Mnangagwa through amendments to the constitution were illegal.

Biti argued the matter on behalf of legal think-tank Veritas and Dzivarasekwa lawmaker, Edwin Mushoriwa.

The matter was heard before seven justices, namely Elizabeth Gwaunza, Paddington Garwe, Rita Makarau, Anny-Mary Gowora, Ben Hlatshwayo, Barat Patel and Tendai Uchena.

Constitutional Amendment Number 2 was passed on 7 May 2021, giving the president powers to appoint judges, the attorney general and his deputies after elections.

Section 92 of the constitution that was adopted in 2013 provided for a 10-year transitional clause giving the president powers to select two running mates who would be jointly elected with him or her.

The un-amended constitution stipulated, through section 180, that the Judicial Services Commission (JSC) would advertise for judges’ vacancies and facilitate public nomination of candidates, who would then be subjected to open interviews.

After that, the JSC would prepare a shortlist of candidates that would then be sent to the president for final selection and appointment.

However the law that is now being challenged by Veritas represented by Biti, gives the president the powers to appoint a judge from either the High Court, Supreme Court, Labour Court or Administrative Court to a higher court without the previously prescribed nomination and public interviews.

Parliament is the first respondent and is being represented by Tawanda Zhuwarara, while President Emmerson Mnangagwa, the second responded, is being counselled by Tembinkosi Magwaliba.

Biti argues that the constitutional amendments in question were not gazetted within the stipulated 90 days as required in section 328(3) of the constitution and was not subjected to public inquiry, in breach of section 328(4).

The former Finance minister also insists that Justice minister, Ziyambi Ziyambi breached procedure because he closed debate on the bill prematurely and did not take heed of submissions made by parliamentarians.

 “To the extent that those amendments were not subjected to a process of public inquiry and were not gazetted for 90 days, it is our respectful contention that such an omission renders the entirety of Constitution of Zimbabwe Amendment (No 2), a legal nullity,” said Biti.

He called upon the Constitutional Court to set aside the law.

“I respectfully contend that the entirety of the Bill must be set aside on the basis that the President and Parliament failed to fulfil a constitutional obligation in passing a Bill that was in breach of section 328 of the Constitution of Zimbabwe,” he said.

Biti added: “In terms of section 167 (2) (d) of the constitution, this honourable court has exclusive jurisdiction to determine whether parliament and/or the president has failed to fulfil a constitutional obligation. We contend that the president and the parliament failed to fulfil a constitutional obligation in passing a bill that was in breach of section 328 and, therefore, Constitutional Amendment No 2 is void and should be set aside.”

The matter is pending.