ACTIVIST Allan Chipoyi has challenged Attorney-General Virginia Mabiza’s decision to depose an opposing affidavit on behalf of President Emmerson Mnangagwa in a Constitutional Court challenge over the reassignment of former Zimbabwe Human Rights Commission (ZHRC) chairperson Jessie Majome to the Public Service Commission (PSC).
Chipoyi, represented by lawyers from Mtetwa and Nyambirai Legal Practitioners, argues that Mnangagwa violated the Constitution by removing Majome from her position as ZHRC chairperson without obtaining a tribunal recommendation, as required under section 187 of the Constitution.
The activist filed the application under section 167(2)(d) of the Constitution, seeking a declaration that the President failed to fulfil his constitutional obligation when he terminated Majome’s tenure as chairperson and reassigned her to PSC.
Chipoyi wants Majome to be reinstated immediately “to the full, unhindered exercise of her functions, duties, powers and privileges as the chairperson of the Zimbabwe Human Rights Commission.”
In response, Mabiza filed an opposing affidavit on behalf of Mnangagwa, stating that she had been authorised by the President to do so.
The Attorney-General argued that Majome was removed from office, but merely reassigned.
“I reiterate that Ms Majome was not removed, but was reassigned from the Zimbabwe Human Rights Commission to the Public Service Commission,” Mabiza said.
“I deny that reassignment is the same as removal as envisaged in terms of section 187 of the Constitution.”
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She argued that section 90(1) of the Constitution, which obliges the President to uphold and defend the Constitution, does not create the type of obligation that can be challenged through proceedings brought under section 167(2)(d).
Mabiza cited what she described as a previous reassignment involving Majome.
“In any event, this is not the first time that the respondent has reassigned Ms FJ Majome,” she said.
“Having appointed her as a commissioner in the Zimbabwe Anti-Corruption Commission on July 12, 2019, the respondent reassigned her to the Zimbabwe Human Rights Commission on March 19, 2024.”
She said reassignment was distinct from removal and, therefore, did not trigger the constitutional procedure for removing commissioners from office.
However, in his answering affidavit, Chipoyi attacked both the substance of the President’s defence and the manner in which it was presented before the court.
Chipoyi argued that Mabiza’s affidavit should be struck off the record because it was based on information obtained from the President rather than her own personal knowledge.
“The opposing affidavit is deposed to by the Attorney-General on behalf of the respondent,” Chipoyi submitted.
“While I acknowledge that a legal practitioner may sometimes depose to an affidavit on behalf of a client, it is a well-established rule of our law that this is strictly an exception limited to facts that are exclusively within the legal practitioner's personal knowledge.”
He argued that the Attorney-General herself acknowledged the limitation of her knowledge when she stated that she had verified certain facts through inquiry.
According to Chipoyi, the case turns on Mnangagwa’s personal conduct, his understanding of his constitutional duties and the reasons behind the decision to bypass a tribunal process.
“The Attorney-General cannot validly attest to the President’s state of mind or the Executive reasons for the purported reassignment.”
He said the President’s failure to personally depose to the affidavit meant the court had not been presented with admissible evidence addressing the central issues in dispute.
Chipoyi also rejected the argument that an earlier reassignment involving Majome can justify the latest move.
“I note with grave concern the respondent’s reliance on the claim that Ms Majome was previously reassigned from the Zimbabwe Anti-Corruption Commission to the Zimbabwe Human Rights Commission in 2024,” he said.
“The respondent essentially argues that because he executed an unconstitutional reassignment in the past without challenge, he is clothed with the legal authority to do so again.”
Chipoyi said unconstitutional conduct could not be legitimised through repetition.
“It is a trite principle of our law that illegality does not become lawful by repetition,” he added.
“An unconstitutional act, if it occurred, cannot be sanitised, nor can it create a binding legal precedent or prerogative simply because it previously evaded judicial scrutiny.”
The activist maintained that the dispute before the Constitutional Court concerns Majome’s removal from office rather than the legality of her earlier appointment or transfer between commissions.
The matter is scheduled to be heard and determined by the Constitutional Court in Harare on July 15, 2026, where judges will decide whether the President acted within the confines of the Constitution when he reassigned Majome from ZHRC to PSC.
