COURT WATCH 10/2012
[21st June 2012]
Prime Minister’s Court Case Against President Not Yet Concluded
This bulletin covers the case brought by Prime Minister Tsvangirai, against President Mugabe and the Provincial Governors, contesting the validity of the Governors’ re-appointments. It is a case with political implications - testing power sharing under the inclusive government and with the potential to affect other key appointments of State officials and also party numbers in Parliament.
Tsvangirai v Mugabe & 10 Provincial Governors
Background to the Case
Mr Tsvangirai is contesting the constitutionality of President Mugabe’s unilateral re-appointment of provincial governors in October 2010. All 10 provincial governors were from the President’s ZANU-PF. The President did not consult Mr Tsvangirai before acting. Mr Tsvangirai argues that the re-appointments are unconstitutional because the President did not consult him before making them, and Article 20.1.3(p) of the Global Political Agreement [GPA], as incorporated into the Constitution by Constitution Amendment No. 19, stipulates that such appointments should be made by the President “in consultation with” the Prime Minister. [Note: in terms of section 115 of the Constitution “in consultation with” means that “the person required to consult before arriving at a decision arrives at the decision after securing the agreement or consent of the person so consulted”. The issue of Provincial Governors was raised during the GPA negotiations under Mbeki and there was an agreement between the parties that the 10 provincial governorships would be shared according to a formula to be negotiated. There were negotiations after the formation of the inclusive government, and a 5-4-1 formula giving MDC-T 5 governorships was widely believed to have been agreed.]
Mr Tsvangirai issued a strong public protest on 7th October 2010 saying that MDC-T would not recognise the appointments. When the Senate resumed early the following month, MDC-T Senators raised loud objections to the presence in the Senate of the “unrecognized” governors; this brought proceedings to a standstill. [Note: Under the Constitution all 10 provincial governors are ex officio Senators.] These protests had no effect. The governors remained in office
On 24th November, 2010 Mr Tsvangirai lodged his application in the High Court, seeking an order declaring the appointments null and void for non-compliance with the provisions of Constitution/GPA Article 20. The effect of such an order would be 10 vacant governorships that the President would be obliged to fill by appointing governors with the agreement of the Prime Minister.
The President’s response The President’s response, through his lawyer Terence Hussein, was to file a preliminary objection to the proceedings, claiming that Mr Tsvangirai had not, as required by the rules of court, first obtained the leave of the High Court to commence the proceedings. Mr Tsvangirai’s lawyer, Selby Hwacha, filed a response stating that the cited rule of court was not applicable to the present context – in other words, that Mr Tsvangirai did not need the High Court’s prior permission to launch this case. [Note: Rule 18 of the High Court Rules lays down in unqualified terms that before legal proceedings are launched against the President – or against a judge – the would-be plaintiff or applicant must first obtain the leave of the High Court to proceed.] This stand-off necessitated a court hearing to decide on the preliminary objection, before the merits or otherwise of Mr Tsvangirai’s main application could be considered.
On 25th May 2012 argument on the preliminary objection was at last heard in the High Court by Judge-President Chiweshe. Mr Hussein argued in support of the objection. For Mr Tsvangirai, Advocate Thabani Mpofu, instructed by Mr Hwacha, argued that rule 18 of the High Court Rules dates from the colonial era, with a very different constitutional set-up in that there was a ceremonial, non-executive head of State, and that the rule cannot be applied in a case involving constitutional issues. Having heard both sides, Justice Chiweshe reserved judgment.
On 11th June the President’s preliminary procedural objection was dismissed by Justice Chiweshe The judge did not give his written reasons for this ruling, saying that they would be included in his judgment on the main application, which would now go ahead. He said he would hear arguments on the main application on Tuesday 10th July.
The President then lodged an application for leave to appeal to the Supreme Court against Justice Chiweshe’s decision. Mr Tsvangirai’s lawyers this week filed papers opposing the application. The application for leave to appeal will be heard by Justice Chiweshe in chambers on a day still to be notified to the parties. [Note: leave to appeal is necessary because the decision is an interlocutory one on a procedural point, rather than a final decision on the merits of the main dispute between the parties.]
On 10th July the case is scheduled to be heard in the High Court To date, Justice Chiweshe’s decision of 11th June is still operative, i.e., with the procedural objection out of the way, it is the merits of Mr Tsvangirai’s application that will be argued in the High Court.
But, if the President succeeds in getting leave to appeal against the decision overruling his procedural objection, and if he then goes ahead and notes an appeal to the Supreme Court, that decision will be suspended, and the hearing of Mr Tsvangirai’s main application will be delayed pending the Supreme Court’s decision. During the waiting period, which may be a lengthy one, the status quo re governors will continue.
Likelihood of delay
- If the President does get leave to appeal at this stage on the procedural objection – there may be a long delay before the appeal is heard in the Supreme Court
- If he does not get leave to appeal on the objection and the main case is heard in the High Court – there is the real possibility that, whichever side wins, the other side will lodge an appeal to the Supreme Court.
Possibility of the case being overtaken by events If there are long delays caused by appeals to the Supreme Court the whole question will be rendered academic if it is not concluded before the GPA and the Inclusive Government end and/or a new constitution comes into force. [Note that appeals to the Supreme Court following Electoral Court decisions against ZANU-PF Parliamentarians after the 2000 elections were delayed so long they fell away when Parliament was dissolved five years later to make way for a new Parliament.]
This case involves only one of many accusations of unconstitutional unilateral action levelled against President Mugabe by the MDC-T. Others were listed by Mr Tsvangirai in the statement of 7th October 2010 that was provoked by the reappointment of the provincial governors, e.g., appointment, without consultation with the Prime Minister, of Supreme Court and High Court judges and ambassadors. And earlier this year there were similar protests about the President’s extension of the terms of office of the Police Commissioner-General and Defence Force commanders. If the Prime Minister wins this case there would be a legal precedent for revisiting these appointments.
It should also be noted that a more equal distribution of the 10 governorships would affect party voting strengths in the Senate, with ZANU-PF losing 6 votes, MDC-T gaining 5 and MDC-M gaining 1. It might also affect voting strengths in the House of Assembly if, as at one time proposed, MDC-T nominees were to be drawn from sitting members of the House; that would also add to the number of vacancies requiring filling by by-elections. All this might be crucial in Parliamentary votes on amending or replacing the present Constitution, where 2/3 majorities are needed in both Houses of Parliament. It would also affect the election for a new President, if the incumbent dies or retires mid term. Under the present Constitution, Parliament would act as an electoral college in a joint sitting of both Houses and the successful candidate has to get a majority of 50% plus at least 1.
Although legally their executive powers are very limited, provincial governors have tended to wield a great deal of influence in their provinces, and having all the governorships in ZANU-PF hands gives the party an advantage in elections.
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