BY MOSES MATENGA
FORMER Constitutional and Parliamentary Affairs minister Eric Matinenga, has ganged up with lawyers Beatrice Mtetwa and Valerie Ingham-Thorpe to challenge recent constitutional amendments which they say are illegal.
Together with Veritas, a human rights trust, the three want the courts to set aside Constitution of Zimbabwe Amendment (No 1) Act of 2017, and Constitution of Zimbabwe Amendment (No 2) Act of 2021.
Matinenga, who is former Buhera West MP (MDC Alliance), superintended over the 2013 Constitution-making process which began in 2009.
It was endorsed in a referendum, where over 93% of Zimbabweans voted in favour of the new Constitution that succeeded the Lancaster House Constitution.
They argued that the amendments would return the country to the “dark days” and were dangerous.
Underfire Chief Justice Luke Malaba, President Emmerson Mnangagwa and the Parliament of Zimbabwe were cited as respondents.
The four applicants want the apex court to set aside the two amendments they say were taking Zimbabwe back to the era of the late former President Robert Mugabe, where power was concentrated in an individual.
“The basic structure of the Constitution of Zimbabwe is predicated on the principle of separation of powers, and independence of the Judiciary. 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,” Matinenga’s application read in part.
“The mischief that the 2013 Constitution tried to deal with was to create a break with the past in respect of where those appointed on the Judiciary became extensions of the Executive.
“In 2017, for instance, there was legal drama with regards to the appointment of the Chief Justice pursuant to the retirement of the late Chief Justice (Godfrey) Chidyausiku. It was perceived at the time that the Executive had its own preference other than Justice Luke Malaba.
“It eliminates and liquidates the former provision and creates a new regime of imperial authoritarian consolidation through the office of an executive President, something which was against the essence of the old Constitution.”
He said there was no criteria in the amendments in which the President would reject a judge, or accept another after reaching the age of 70.
“This is sad and unacceptable. Furthermore, notwithstanding the provisions of section 328(7) of the Constitution, which makes it clear that where there is a change in the Constitution increasing the term of office of an individual, the same shall not benefit the incumbent, section 186(4), creates the impression that the incumbents are intended to benefit. Section 186(4) is dangerous. It is an attempt to side-step section 328(7), without going to a referendum or without following any of the procedures for amending section 328.”
Matinenga said the appointments of judges were no longer transparent and accountable as they would be in the hands of the President alone.
He said the running mate issue was of major concern as it had been raised following the long period that Mugabe had stayed in office, and it was felt there was a gap in the succession policy.
“Peace and stability was compromised. The new provision now creates uncertainty and instability. Like the Lancaster House Constitution, it now shifts the burden of succession to a political party. Those political parties are often fractured and divided and advancing limited party interests instead of national interests,” he said.
Their challenge follows similar applications by other actors, who wanted the amendments to be set aside
These include the Zimbabwe NGO Forum executive director Musa Kika, the Young Lawyers Association of Zimbabwe, and war veteran Fredrick Matanda, who successfully challenged Mnangagwa’s extension of Malaba’s term of office.
Opposition MDC Alliance MP for Chitungwiza North Godfrey Sithole also raised similar objections in his application at the apex court last week seeking an order nullifying the Senate vote of April 2021 on the Constitution of Zimbabwe Amendment (No 1) Bill.
However, last week, a little-known Zanu PF youth league member, Marx Mapungu, filed a Constitutional Court application seeking to nullify a judgment that ended Malaba’s term as Chief Justice. Mapungu is being represented by constitutional lawyer Lovemore Madhuku.
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