THE Constitutional Court (ConCourt) has hinted that President Emmerson Mnangagwa had a moral duty to recuse himself from Cabinet’s Constitutional Amendment No 3 Bill (CAB 3) discussions to extend his term of office by two years.
One of the ConCourt judges made the observation in a ruling that cast a shadow on the push by the 83-year-old loyalists to overhaul the country’s electoral system.
The remarks by Justice Bharat Patel formed the crux of the judgment delivered by a full seven-member ConCourt bench on Wednesday that struck off the roll an application by war veterans challenging Mnangagwa’s involvement in the CAB 3 process.
The war veterans, represented by constitutional lawyer Lovemore Madhuku, approached the apex court arguing that the President breached his constitutional obligations by initiating and advancing constitutional amendments whose purpose and effect were allegedly constitutionally impermissible.
Patel drew a sharp distinction between what may be considered ethically desirable and what is legally enforceable under the Constitution.
“Even if one accepts the highly persuasive proposition that he has a moral duty to recuse himself from the process, that in itself does not translate to a legal or constitutional obligation to do so,” Patel said while delivering judgment.
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“The second basis on which the applicants’ contention cannot succeed is that they have not identified any constitutional provision prohibiting the President from participating in Cabinet discussions relating to proposed constitutional amendments.
“The mere fact that a proposed constitutional amendment might benefit the President cannot, without more, render his participation in that process unconstitutional.”
Patel said the applicants failed to identify a constitutional provision prohibiting the President from participating in Cabinet discussions relating to proposed constitutional amendments.
According to the court, accepting the applicants’ argument would create a precedent where Executive officials could face accusations of constitutional misconduct merely for taking part in processes authorised by the Constitution.
The war veterans were seeking a declaration that Mnangagwa violated his constitutional obligations by directing and approving the constitutional amendment process through Cabinet despite allegedly standing to benefit from some of the proposed changes.
The court also rejected an argument that the President was obliged to personally file an opposing affidavit in the matter.
The applicants contended that proceedings concerning a president’s constitutional obligations were personal in nature and could not be opposed through an affidavit deposed to by another State official.
Patel disagreed, saying that while constitutional obligations imposed on the President may be personal and non-delegable in substance, that did not mean he was required to personally swear every affidavit filed in proceedings brought under section 167(2)(d) of the Constitution.
“Neither the Constitution nor the Constitutional Court rules expressly require the President to personally swear an opposing affidavit,” Patel said.