Fidelis Munyoro

Chief Court Reporter

THE Constitutional Court has reserved judgment in a high-profile challenge to Constitutional Amendment Bill No. 3 (CAB3), after lawyers representing President Mnangagwa, the Minister of Justice, Legal and Parliamentary Affairs and the Attorney-General mounted a robust pushback to an attempt by some war veterans to bring the matter directly before the highest court in the land.

The application was heard by a three-judge bench comprising Deputy Chief Justice Paddington Garwe, sitting with Justices Rita Makarau and Chinembiri Bhunu.

Representing President Mnangagwa, Justice, Legal and Parliamentary Affairs Minister Ziyambi Ziyambi and Attorney-General Mrs Virginia Mabiza, Advocate Sylvester Hashiti told the court on Tuesday that the applicants had failed to clear the most basic procedural hurdles for direct access, arguing that their case was improperly constituted and should not be allowed to bypass the High Court.

Adv Hashiti went further, urging the court not only to dismiss the present application but to shut the door on any further attempts to bring the same dispute directly before the Constitutional Court.

His central argument was that the applicants had not demonstrated the legal standing or exceptional circumstances required to approach the country’s highest court as a court of first instance.

“The applicants have not established the basis on which they are before this court,” Adv Hashiti said.

“They have not shown that they are voters, presidential candidates or persons with a direct legal interest in this matter. Neither have they demonstrated any public interest sufficient to justify direct access.”

He said the attempt to proceed directly to the Constitutional Court was particularly difficult to sustain when the High Court remained available as the court of first instance.

“They should have approached the High Court first,” Adv Hashiti said. “They have not shown any exceptional basis for coming directly to this court.”

Adv Hashiti also took aim at what he described as the unnecessary citation of President Mnangagwa in the proceedings, arguing that the President had no outstanding constitutional function or legal interest that placed him at the centre of the dispute.

“The President has no interest in this case,” he said. “There is no justification for citing him when his constitutional function in the process has already been completed and that function is not what is being challenged.”

He said attempts to draw the President into the dispute, therefore, had no legal foundation.

“The issues concerning the President are legally unnecessary,” Adv Hashiti said.

The submissions strike at the foundation of the applicants’ case rather than the merits of CAB3 itself: before the Constitutional Court can determine whether the amendments are constitutional, Adv Hashiti argued, the applicants must first demonstrate that they are properly before the court and entitled to invoke its jurisdiction directly.

He consequently asked the court to dismiss the application and prevent what he characterised as attempts to repeatedly circumvent the ordinary court process.

“I urge the court to dismiss this application and any intended application for direct access arising from the same issue,” Adv D Hashiti said.

The war veterans, represented by constitutional law professor Lovemore Madhuku, are challenging CAB3 on constitutional grounds, including changes affecting the election of the President and the length of presidential and parliamentary terms.

Prof Madhuku maintains that the constitutional changes raise fundamental questions requiring determination by the Constitutional Court.

The bench has now reserved its ruling on whether the applicants have met the requirements for direct access.