ATTORNEY-GENERAL Virginia Mabiza is seeking to have a Constitutional Court (ConCourt) application challenging the proposed extension of President Emmerson Mnangagwa’s term dismissed.
The application was filed by six war veterans challenging the proposed constitutional amendments that could extend Mnangagwa’s rule by two years.
The war veterans — Reuben Zulu, Godfrey Gurira, Shoorai Nyamangodo, Joseph Chinyangare, Digmore
Knowledge Ndiya and Joseph Chinguwa — are being represented by constitutional lawyer Lovemore Madhuku.
In her opposing affidavit filed at the ConCourt, Mabhiza, who is cited as the second respondent, argued that the war veterans’ ConCourt challenge is speculative as Constitutional Amendment No 3 Bill has not yet been passed into law.
Mnangagwa, who is cited as the first respondent in the matter, has not filed a notice of opposition in the ConCourt case.
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Mabiza said she was deposing on her own behalf and that of the President, given that the matter centres on statutory interpretation with no foreseeable disputes of fact.
“If applicants believe that the proposed Constitutional Amendment Bill is unconstitutional, as they allege, they should participate in these consultations and/or submit their written objections and proposals before Parliament,” she submitted.
“Should their submissions not be accepted and the Bill becomes law, they can always challenge the constitutionality of the final product.”
She also raised separation of powers concerns, warning that the court should not interfere with Parliament’s law-making process.
“The legislative process must be allowed to take its course.
“Additionally, applicants misread the jurisdiction of this honourable court to pronounce on proposed legislation and to interfere with law-making processes as understood within the conspectus of separation of powers.”
In response to Mabiza’s objections, Zulu, the lead applicant, insisted that the case was not premature.
He argued that the challenge is not merely about a future law, but about the President’s current conduct.
“The complaint is that the first respondent has already failed to defend the Constitution by presiding over and being party to the Executive advancement of the impugned scheme,” he submitted.
“That constitutional failure, as established in the founding papers, was complete the moment the first respondent employed the authority of his office and the machinery of Cabinet in aid of a scheme which, we contend, stands against the express anti-self-extension command contained in section 328(7) of the Constitution and offends section 88(1) in a most fundamental respect, by deploying Executive authority away from the people as stipulated by the Constitution.”
Zulu argued that the alleged breach arose when Mnangagwa, through Cabinet processes, supported a proposal that could benefit him personally, contrary to constitutional provisions.
He added that the President should have recused himself from the process.
“What was impermissible was not some failure to police Parliament, but personal participation in advancing through Executive authority a scheme from which he stood to benefit and which trenches upon the Constitution’s own anti-incumbency command.”
Mabiza, however, disputed that the President has a constitutional obligation to assess the legality of proposed legislation.
“It is not true that the first respondent has an obligation arising from the Constitution to judge the constitutional conformity of proposed laws much the same way that he has no such obligation in respect of promulgated laws.
“That function is for the courts.”
Zulu added that Mnangagwa’s failure to file opposing papers suggested that he was not contesting the relief being sought.
He said: “The failure of the first respondent to file an opposing affidavit making submissions on what we have alleged as failure to fulfil his constitutional obligations means that he is not opposed to the relief sought.”
Zulu maintained that the relief sought is narrowly focused on the President’s conduct, not Parliament.