Presidential powers challenge hearing today

President Emmerson Mnangagwa has now taken over litigation in which his predecessor, Robert Mugabe had been taken to court by activist, Mfundo Mlilo, who is challenging the gazetted Statutory Instrument (SI) 117/2017, which amended the Electoral Act, giving the Head of State powers to override decisions made by Parliament or make a law that overrides the existing legislation.

BY CHARLES LAITON

Mlilo’s Constitutional Court application came about after Mugabe, on September 15, 2017, through the Government Gazette extraordinary volume XCV number 61, published the Presidential Powers (Temporal Measures) Amendment of the Electoral Act Regulations as SI 117/2017.

Through his lawyer, Tendai Biti, Mlilo said Mugabe’s move was in breach of the Constitution of Zimbabwe.

“In any event, the President, acting in terms of the Act or any other law does not have the power to override Parliament, through a parliamentary amendment or the making of a law that overrides existing law,” Mlilo said.

“Accordingly, to the extent that the respondent (Mugabe) has purported to make a law, being the Presidential Powers (Temporal Measures) (Amendment of Electoral Act) Regulations, we seek that the same be declared null and void and of no force and effect.”

However, in response to the litigation, Mnangagwa, through the Civil Division of the Attorney-General’s (AG) Office, said the President enjoyed those powers and the situation was not peculiar to Zimbabwe.

“The presidential prerogative is a power that attaches to the President by virtue of his office. It is historically derived from the monarch of the United Kingdom. Under the common law, respondent (President) has always enjoyed prerogative powers which entitle him to promulgate temporary legislation in urgent situations,” the AG said.

“The contents of such legislation have been codified under the provisions of the Presidential Powers Act. The respondent’s prerogative powers that he has always enjoyed under the common law have not been abolished under the Constitution. If anything, section 110 to 113 are some of the sections that provide for some, but not all, of the President’s prerogative powers.

“In Britain, the analogous royal prerogative has been overtaken by the Civil Contingencies Act of 2004. In other countries, it is expressed in the legislative sphere … such powers are not peculiar to Zimbabwe, and are derived historically from the status of Zimbabwe as a colony of the United Kingdom,” the AG said, adding: “The new Constitution does not abolish the prerogative power of the President although it no longer mentions that power specifically.”
The matter is set to be heard today before High Court judge, Justice David Mangota.

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