Taking Zimbabwe’s bloated executive to court
We’ve just received the latest report from the Research and Advocacy Unit, entitled Challenging Zimbabwe’s bloated executive.
The report discusses the fact that Zimbabwe has more Ministers than it is actually Constitutionally allowed to have. This has been the case since the swearing in of the inclusive government cabinet on 13 February 2009, but it has recently come back into public discussion. According to RAU, “on 7 May, Zimbabwean citizen and civil society activist Moven Kufa filed papers in the High Court challenging the constitutionality of the appointment of the extra Ministers.”
However, this court application has been largely ignored by the Zimbabwean media, both state and local.
The response of the MDC itself to the case – Morgan Tsvangirai is one of the respondents, in his capacity as Prime Minister – has exhibited a worrying lack of seriousness for a party that paints itself as the “rule of law party.” The report comments:
The Ministers cited as Respondents to the Application have not filed any opposing papers. The President, Robert Mugabe, and Prime Minister, Morgan Tsvangirai are cited as the 1st and 2nd Respondents in addition to the Respondent Ministers. In a further irony, these two Respondents have not attested to any opposing affidavits. That task has been left to the Attorney-General who claims in his opposing papers to have the authority of both Respondents to attest an affidavit on their behalf and that he is constitutionally empowered to do so. So the very individual whose appointment is so hotly contested by Tsvangirai, Johannes Tomana, is now engaged by Tsvangirai to oppose what is stated as an attempt to compel compliance with the rule of law and the Constitution.
This situation becomes even more remarkable when one considers that the arguments advanced in the opposing affidavit by Tomana are, legally speaking, those of Tsvangirai and Mugabe. Supporters of Tsvangirai may then be astounded to learn what those arguments are and that Tsvangirai is prepared to be not merely associated with then, but to allow them to be advanced on his behalf.
Tomana, and thus Mugabe and Tsvangirai, contend that Moven Kufa is not entitled to bring the Application at all, as there has been no violation of his rights set out in the Declaration of Rights in the Constitution. They claim that Kufa has no legal right to complain that neither Mugabe nor Tsvangirai complied with the provisions of the Constitution when the appointments were made. Only parliament can do that, they claim. Parliament does indeed have the power to impeach the President for breaches of the Constitution. However, such impeachment requires a two-thirds majority of parliament in favour to succeed. Accordingly, if the contention of Tomana, Tsvangirai and Mugabe is correct, Tsvangirai and Mugabe are free to ignore the provisions of the constitution so long as two-thirds of the members of parliament or more do not object to these violations.
Read more about the case, its arguments, merits and challenges here.