Zimbabwe: Suits Pile Up Against ED’s Constitutional Amendment Laws

By Mary Taruvinga
President Emmerson Mnangagwa has again been dragged to court by two top lawyers Eric Matinenga and Beatrice Mtetwa for assenting to a Bill giving him powers to control the judiciary.

This is one of the many applications filed by individuals and others including the Young Lawyers Association of Zimbabwe, Musa Kika and Godfrey Karakadzai, who feel aggrieved by the move.

The Constitutional Amendment sparked public uproar after Mnangagwa went on to extend unpopular Chief Justice Luke Malaba’s retirement age from 70 to 75.

Constitutional Amendment (No.2) Act, among other things, allows the President to appoint the CJ, Deputy CJ and Judge President without subjecting them to open selection processes.

Other applicants in the Constitutional Court application by the two lawyers are Firninne Trust operating as Veritas and Valerie Ingham-Thorpe.

The four argue the amendment was in violation of the constitution.

Said Matinenga in his founding affidavit, “This is a constitutional application. It is directed against Constitutional Amendment No 1 of 2017 which was passed by Parliament, on the 6th of April 2021 and Constitutional Amendment No 2 which was passed by Parliament on the 4th of May 2021 and gazetted on the 7th of May 2021 as the Constitution of Zimbabwe Amendment No 2 Act being Act No 2 of 2021.”

According to Matinenga, both Constitutional Amendment Act No 1 of 2017 which was gazetted on the 7th of September 2017 and Constitutional Amendment Act No 2 of 2021 are unconstitutional amendments in that, they are inconsistent with the provisions of Section 117(2)(b) which requires that Parliament makes laws for the peace, order and good governance of Zimbabwe.

“I aver and contend that the changes made in Constitutional Amendments No 1 and 2 which allow the President to now solely appoint the Chief Justice and the deputy Chief Justice, as well as extending the term of office of Constitutional Court Judges beyond the age of 70 as well as allowing current sitting judges of the Supreme Court and the Constitutional Court to benefit from the extension of the term of retirement from 70 to 75 is bad law which is against the principle of good governance of Zimbabwe espoused in the Constitution of Zimbabwe.

“The Constitution is the supreme law of the country.

“Its basic structure must be protected. The basic structure of the Constitution of Zimbabwe is predicated on the principle of separation of powers, and independence of the judiciary.

“These are founding principles codified in Section 3 of the Constitution of Zimbabwe. I maintain that any Constitutional Bill or Act affecting the basic structure of the Constitution is against the peace, order and good governance of Zimbabwe and is therefore unconstitutional to the extent that the two laws now allow the President to appoint judges and to tamper with their offices, this is a fundamental redrafting of the Constitution and a fundamental defacement of the basic structure and values of the Constitution.”

Matinenga said Constitutional Amendment Bill No 1 of 2017, was passed by Parliament, in breach of Section 147 of the Constitution of Zimbabwe which provides that on the dissolution of parliament, all proceedings pending at the time are terminated and every Bill, motion, petition and other business lapses.

The case is yet to be heard.

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