A FRESH Constitutional Court application challenging the validity of Constitutional Amendment Act No. 3 argues that President Emmerson Mnangagwa ought not to have assented to the law because he stood to personally benefit from its provisions.
Instead, the application contends, one of the Vice-Presidents should have signed the Bill while acting as President to avoid a conflict of interest.
The application was filed by National Constitutional Assembly (NCA) member Vhurande Mahlupeko, represented by Lovemore Madhuku, who cited Parliament, Mnangagwa, Attorney-General Virginia Mabhiza and Justice, Legal and Parliamentary Affairs Minister Ziyambi Ziyambi as respondents.
Constitutional Amendment Act No. 3, which Mnangagwa signed into law earlier this month, extends the terms of office of the President, Parliament and local authorities from five to seven years, among other changes.
In his founding affidavit, Mahlupeko argues that the President breached his constitutional obligations by assenting to legislation from which he stood to derive a direct personal benefit.
"With the President, there is one fundamental constitutional obligation that he failed to fulfil. This is the constitutional obligation not to assent to and sign Bills where he is conflicted owing to a direct personal interest in respect of the Bill in question," the application reads.
Mahlupeko argues that sections 196(2) and 110(2)(a) of the Constitution require the President to avoid conflicts between his personal interests and official duties.
"I am advised that while section 196(2) of the Constitution applies to all public officers, including the President, he has a constitutional obligation not to assent to and sign a Bill in which he stands to derive a personal benefit. The President is absolutely required to avoid any conflict between his personal interests and his public or official duties," the affidavit reads.
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According to the application, because Constitutional Amendment Act No. 3 extends the President's own tenure in office, Mnangagwa was conflicted and should have recused himself from signing the Bill.
"I am advised that where a prohibited conflict arises, assenting to and signing a particular Bill must be left to an Acting President," Mahlupeko argues.
The application therefore argues that one of the Vice-Presidents, either Constantino Chiwenga or Kembo Mohadi, should have signed the Bill while acting as President.
Mahlupeko argues that Mnangagwa's decision to assent to the legislation rendered the constitutional amendment invalid, forming part of broader arguments seeking to have Constitutional Amendment Act No. 3 declared null and void.
The challenge is one of several applications filed before the Constitutional Court contesting the legality of the constitutional amendment, which has generated widespread political and legal controversy over changes that include extending the terms of office of elected office bearers.
