Prime Minister Morgan Tsvangirai says it is possible to sue President Robert Mugabe if the contentious issues are to do with constitutional matters.
Tsvangirai made the assertions in a High Court application responding to an opposing application filed by President Mugabe’s lawyers arguing the President cannot be sued in terms of Rule 18 of the High Court Rules.
Last month, Tsvangirai petitioned the High Court to annul the re-appointments of 10 provincial governors by President Mugabe arguing they were unconstitutional.
Tsvangirai said he was surprised President Mugabe and the other respondents had taken a “so simplistic a view of the otherwise serious” constitutional issue in his application before the High Court.
The Prime Minister cited President Mugabe as the first respondent. The other respondents are provincial governors from the country’s 10 provinces and Local Government minister Ignatius Chombo.
But the President’s lawyer, Maxwell Ranga, responded by saying in terms of Rule 18 of the High Court Rules, RGN1047/1971, it was not possible to sue a sitting President.
The rule reads: “No summons or other civil process of the court may be issued out against the President or against any of the judges of the High Court without the leave of the court granted on court application being made for that purpose.”
Ranga said it was clear from the said rule that leave to institute proceedings against the President was required before an application could be instituted against him.
“The Applicant (Tsvangirai) has neither alleged that he obtained such leave, nor has he attached to this application proof of such leave. It is respectfully submitted that no such leave has been obtained in terms of the Rules of this Honourable Court,” said Ranga.
But in his answering affidavit filed on December 21, 2010, Tsvangirai said: “I am advised and respectfully believe that the context of Rule 18 of the administrative rules of this Honourable Court is inapplicable in the circumstances of this case generally and in constitutional cases in particular.
“The simplistic interpretation placed on the rule by respondents leads to absurdities which were not intended when the rule was made.
“It does not make sense to argue that one must ‘sue the President for authority to sue the President’.”
Tsvangirai argued that Rule 18 came about during the colonial era and was used just after independence. It was no longer applicable in a constitutional democracy, he said.
“It appears to me that Rule 18 came about during the pre-and post-colonial era of a ceremonial, non-executive Head of State such as the Queen of England, Governors of Southern Rhodesia, Presidents of Rhodesia and the first President of independent Zimbabwe,” said the Prime Minister in the court papers.
“This is no longer the position in Zimbabwe’s constitutional democracy. Rule 18 was not designed to and cannot be used to defeat or delay superior rights and obligations enshrined in the Constitution especially where the issues are of importance as the case here.”
Tsvangirai said Rule 18 was not mandatory as claimed by the President’s lawyer.
“Rule 4C of the same High Court Rules on which the respondents predicate their objection in limine (a motion made at the start of a trial requesting that the judge rule that certain evidence may not be introduced in the trial) clearly empowers this Honourable Court to ‘direct, authorise or condone departure from any provision of the rules in the interest of justice’.”
Tsvangirai said in his view the interests of justice in this matter would be “seriously compromised and delayed in the unlikely event that the applicability of the rule in this matter were to be upheld accordingly and to the extent that it may be necessary to do so”.
He said the court should take a robust approach in dealing with the matter.
Tsvangirai said the President and the other respondents in the matter were “clutching on to straws”.
He said they had failed, in substance and on the merits, to direct the court to other facts, or any law to contest or dispute his declaration that the governors were appointed illegally.
Tsvangirai said he was giving President Mugabe 10 days to file a “serious” response on the merits of his application.
“In the interests of justice and transparency, however, I am prepared to and hereby offer the first respondent (President Mugabe) and all the other respondents and interested parties cited the opportunity to file serious responses on the merits within a further 10 days of the date of filing of this answering affidavit,” Tsvangirai said.
Tsvangirai said he failed to understand why Ranga, as acting permanent secretary of a government ministry under his supervision, was representing the President. Ranga was acting permanent secretary for Legal Affairs when he filed the opposing application. He said Ranga was failing to appreciate he “is conflicted”.
“He has not explained how he is qualified to render an opinion on the law or contribute to the facts,” said Tsvangirai.
“There is no proof that he is authorised to swear an affidavit on behalf of the first respondent (President Mugabe).”