Online Reporter
Fidelis Munyoro, [email protected]
The Constitutional Court yesterday struck off the roll an application that sought to challenge President Mnangagwa’s participation in Cabinet processes relating to Constitutional Amendment Bill No. 3, reaffirming the constitutional role of the President within Government and the limits of the Court’s jurisdiction under section 167(2)(d) of the Constitution.
The unanimous judgment, handed down yesterday by a seven-member Constitutional Court bench, marked an important moment in Zimbabwe’s constitutional jurisprudence, with the court clarifying the distinction between broad constitutional duties and specific constitutional obligations that can be enforced through litigation.
The application had been brought by Rueben Zulu and five other war veterans Godfrey Gurira, Shoorai Nyamangodo, Joseph Chinyangare, Digmore Knowledge Ndiya, and Joseph Chinguwa, represented by constitutional lawyer
Professor Lovemore Madhuku, who argued that the President had failed to fulfil constitutional obligations by presiding over Cabinet deliberations and processes relating to Constitutional Amendment Bill No. 3.
The applicants sought a declaration that the President had acted inconsistently with sections 90(1), 90(2)(b) and 196(2) of the Constitution. They also sought consequential orders relating to Cabinet’s approval of the proposed constitutional amendments.
However, the Constitutional Court found that the applicants had not established the legal requirements necessary to sustain an application under section 167(2)(d) of the Constitution.
Justice Bharat Patel emphasised that a litigant seeking relief under section 167(2)(d) must identify not only the functionary whose conduct is being challenged but also a specific constitutional obligation imposed upon that functionary and demonstrate how that obligation has not been fulfilled.
“The applicants have fallen short of the critical requirement to establish any precise or specific obligation imposed upon the first respondent (The President) that he has failed to fulfil,” Justice Patel said in the judgment.
He added: “Neither have they pleaded the exact conduct based on which an application in terms of s 167(2)(d) of the Constitution can be brought against the first respondent.”
The court first addressed a preliminary point raised by the applicants, who argued that the President had not properly opposed the application because he had not personally deposed to an opposing affidavit.
Rejecting that argument, the Court held that neither the Constitution nor the Constitutional Court Rules require the President personally to file an affidavit in proceedings of this nature.
The court accepted that the Attorney-General was competent to depose to an affidavit on behalf of the President and participate in the proceedings. The court then turned to the substantive issues before it.
A central question was whether sections 90(1) and 90(2)(b) of the Constitution create the kind of specific constitutional obligations that can be enforced through section 167(2)(d).
Justice Patel observed that while those provisions set out important constitutional responsibilities for the President, they are framed in broad terms and do not readily translate into specific obligations capable of objective judicial enforcement in the circumstances of the case.
The court noted that section 90(1), which requires the President to uphold, defend, obey and respect the Constitution, and section 90(2)(b), which requires respect for the ideals and values of the liberation struggle, establish overarching constitutional standards that guide the conduct of the Head of State.
However, the court held that an application under section 167(2)(d) requires the identification of a specific constitutional obligation that is clearly ascertainable and capable of judicial determination.
The judgment further highlighted that the President’s participation in Cabinet deliberations was consistent with his constitutional responsibilities.
The court pointed to section 105 of the Constitution, which establishes Cabinet and provides that the President chairs Cabinet meetings. It also referred to section 110, which assigns Cabinet responsibility for preparing, initiating and implementing national legislation.
Accordingly, the court found that the President’s involvement in discussions relating to Constitutional Amendment Bill No. 3 was undertaken within the framework of powers and responsibilities expressly conferred by the Constitution.
In one of the most significant passages of the judgment, Justice Patel stated that the Constitution does not require the President to determine in advance whether proposed legislation is constitutional.
“There is no obligation on the first respondent to determine, in advance, the constitutionality of proposed legislative or constitutional amendments. That responsibility lies squarely with the courts exercising constitutional jurisdiction,” ruled the judge.
The Court also considered the applicants’ reliance on section 196(2) of the Constitution, which requires public officers to avoid conflicts between personal interests and official duties.
Justice Patel held that section 196(2) applies generally to all public officers and does not impose a distinct constitutional obligation specifically upon the President for purposes of section 167(2)(d).
The Court further found that the facts presented before it did not establish any conflict between the President’s personal interests and his constitutional responsibilities.
In reaching its conclusion, the court drew on previous decisions of both Zimbabwean and South African constitutional courts concerning the enforcement of constitutional obligations and the scope of constitutional jurisdiction.
The judgment repeatedly stressed that courts must distinguish between broad constitutional values and specific constitutional obligations that are capable of enforcement through judicial proceedings.
Having found that the applicants had failed to identify a specific constitutional obligation that had not been fulfilled, the court concluded that the matter had not properly invoked its jurisdiction under section 167(2)(d).
“The application is improperly before us and must therefore fail,” Justice Patel stated.
The court accordingly ordered that the application be struck off the roll and directed that there be no order as to costs.
The judgment was unanimously supported by Chief Justice Elizabeth Gwaunza, Deputy Chief Justice Paddington Garwe, Justices Rita Makarau, Anne-Mary Gowora, Ben Hlatshwayo and Acting Justice Antonia Guvava.
Advocate Sylvester Hashiti represented the President while other co-respondents were represented by Mike Chimombe of the Attorney General’s Civil Division.
