The lawyers interviewed by the Zimbabwe Independent, however, differed on whether there are any legal remedies to Mugabe’s unilateral appointments with some arguing that the courts cannot question decisions made by the president and others opposing this school of thought saying Amendment No 19 overrides any laws in the constitution that were inconsistent with the Global Political Agreement and provisions of the amendment that created the inclusive government.
In a letter to Sadc facilitator, South African President Jacob Zuma dated October 7, Tsvangirai said his party was considering taking Mugabe to court over the “illegal” appointments.
MDC-T sources said the party was seriously thinking about challenging Mugabe in the Supreme Court over the unilateral re-appointments of provincial governors and appointments of judges, ambassadors, the Attorney-General and Governor of the Reserve Bank without consulting Tsvangirai.
The letter to Zuma read: “I am extremely concerned about President Robert Mugabe’s and his party’s lack of commitment either to the GPA, to the Sadc resolutions or the constitution and laws of Zimbabwe. I have now resolved not to recognise any of the illegal appointments made by President Mugabe.”
The letter went on to say: ‘This applies to a significant number of government positions, including a member of the cabinet (the Attorney-General), 10 governors and senators, five senior judges of the Supreme and High Courts, and six ambassadors (including South Africa).
My party will also consider taking legal action on these matters, which will bring into stark light the constitutional crisis which we now face.”
However, the lawyers, who believe that it might be a waste of time to take Mugabe to court, pointed to Section 31 (K) of the constitution, which they said did not allow the courts to enquire into how the president exercises his discretion.
These lawyers said the section was neither repealed nor amended by Constitution Amendment No 19 and could therefore not be superseded by an agreement of political parties.
The section states that: “Where the President is required or permitted by this Constitution or any other law to act on his own deliberate judgment, a court shall not in any case inquire into any of the following questions or matters –– (a) whether any advice or recommendation was tendered to the President or acted on by him; or (b) whether any consultation took place in connection with the performance of the act; or (c) the nature of any advice or recommendation tendered to the President; (d) the manner in which the President has exercised his discretion.”
It goes on to say where the president is required or permitted by the constitution or any other law to act on the advice or recommendation of or after consultation with any person or authority, a court shall also not, in any case, inquire into the nature of any advice or recommendation tendered to the president.
The courts, the constitution says, will also not ask the manner in which the president has exercised his discretion after the consultation.
Constitutional lawyer Lovemore Madhuku said: “Amendment No 19 is not a new constitution. It is just an amendment of certain sections in the constitution, it doesn’t override the whole constitution.
“Amendment No 19 has nothing to do with Section 31 (K). It only changes a few aspects of the constitution. He cannot be taken to court. Read Amendment No 19 and follow the sections that were changed. It only changed some sections.”
Madhuku maintained that the solution remains a political one to the political impasse, which has seen the once good relations between Mugabe and Tsvangirai break down after the president unilaterally re-appointed the 10 provincial governors, which outraged the premier. Tsvangirai has since the appointments boycotted two cabinet meetings and the principals have not had their regular Monday meetings.
However, Advocate Eric Matinenga, who spoke in his personal capacity, differed saying he belonged to the second school of thought who believe that Amendment No 19 and the GPA override sections, such as 31K, as long as the government of national unity is in existence.
Matinenga pointed out that: “If you look at this position now, this particular Section (31 K) is now overridden by what Amendment No 19 says. Section 31 (K) would only make sense without Amendment No 19. So what the president has done is that he has operated outside the constitution,” he said.
“Look, what he has done is contrary to Amendment No 19, therefore contrary to the constitution. Whatever one may say, Section 31 (K) is now inconsistent to Amendment No 19. What has actually happened is that instead of going to every section of the constitution, sections that are inconsistent to Amendment No 19 are now of no effect as long as the GNU still exists.”
Another legal expert with the Media Institute of Southern Africa (Misa-Zim) Farai Nhende
concurred, saying amendment 19 superseded the constitution.
“In this respect I am guided by the wording under schedule 8 which provides for transitional amendments and provisions. It is not the GPA that supersedes any provisions to the contrary but particular provisions clearly stipulated under Article XX of the Amendment.”
Schedule 8 states that: “For the avoidance of doubt, the following provisions of the Interparty Political Agreement, being Article XX thereof, shall, during the subsistence of the Interparty Political Agreement, prevail notwithstanding anything to the contrary in this Constitution.”
“The import of this statement in my view succinctly deals with the questions at hand. It makes it clear that while the Amendment 19 remains in force it shall take precedence over any other constitutional provision inconsistent thereto,” said Nhende.
“There can also be no doubt that the enactment of this amendment into law was to give it legal force, which effectively meant that its provisions could amend certain sections of the constitution; had this not been the intention then it would have just sufficed to leave the document aptly termed the GPA without legislating it.”
Article XX of the GPA deals with the framework of a new government, which states that “the executive authority of the inclusive government shall invest in and be shared among the President, the Prime Minister and the cabinet, as provided for in this constitution and legislation.” It also states that: the president “in consultation with the Prime Minister, makes key appointments…”
Matinenga pointed out that: “all parties in the agreement are expected to conduct themselves in high moral ground, working together in the inclusive government and that there should be willingness to compromise.”