Mnangagwa Has No Legal Basis To Promulgate Statutory Instruments

THE continued use of Presidential Powers Temporary
Measures Act by President Emmerson Mnangagwa is
unconstitutional, legislators have argued in court.
High Court judge Justice Philda Muzofa reserved
judgement in the case in which opposition legislators
Willias Madzimure and Allan Markham had taken
Mnangagwa and Attorney-General Prince Machaya to
court over the abuse of power.
Madzimure and Markam want the court to declare
the Presidential Powers Temporary Measures Act invalid. Their argument is that the Act is unconstitutional as
it gives the President sweeping powers for making laws
on virtually any subject and to make laws that override
Parliament.
“We also seek an important declaratory to the effect
that consistent with Section 134(f) of the constitution
of Zimbabwe, a statutory instrument should not come
into effect until it has been scrutinised by Parliament in
particular by the Parliamentary Legal Committee before
it comes into operation,” the court application reads.
“The practice for all statutory instruments including
regulations made by the President in terms of the Act is
that they are published and gazetted and they take operation immediately. Yet section 134(f) makes it clear
that they must be laid before Parliament and scrutinised
by the Parliamentary Legal Committee. The anomaly
is that by the time that Parliament is vested with the
statutory instrument and the time that the Parliamentary Legal Committee meets, the regulations will be in
operation.”
“In the case of regulations made under the Act sometimes the six months life of the particular statutory instrument would have been reached.”
The lawmakers said Mnangagwa did not have a constitutional mandate to enact laws. “Under chapter 5, I
draw this honourable court’s attention to the powers of
the President which are clearly spelt out in section 110
of the constitution. The functions of the President according to section 110 are the following: (a) Assenting
to and signing bills; (b) Referring a bill to the Constitutional Court for opinion an advice on its constitutionality; (c) Summoning the National Assembly, the Senate
or Parliament to an extraordinary sitting to conduct
special business; “(d) Making appointments which the
constitution or legislation requires the President requires
to make; (e) Calling for elections in terms of the constitution; (f) Calling referendums on any matter in accordance with the law; (g) Deploying the Defence Forces;
(h) Conferring honours and awards; (i) Appointing ambassadors, plenipotentiaries, and diplomatic and consular representatives; and (j) Receiving and recognising
foreign diplomatic and consular representatives.”
“In none of these functions is the President empowered to make laws as he is allowed to by the Act,” the
application reads.
They also argue that the Act goes against the provisions of the constitution on separation of powers.
Madzimure and Markham said the Act was a direct
infringement of section 134(a) and (d) of the constitution of Zimbabwe which proffers and makes it clear
that Parliament’s primary law-making powers shall not
be delegated and that any law delegating power must
define the limits of that power.
“We further seek a declarator to the effect that any
statutory instrument made, should only come into existence after scrutiny by the Parliament and the Parliamentary Legal Committee in terms of Section 134(f) of
the Constitution,” the application reads.
“Therefore we seek a declaratory to the effect that the
statutory instrument made in terms of delegated legislation should only come into being after approval by
Parliament’s Legal Committee consistent with section
134(f) of the constitution.
“Furthermore, it is a breach of section 134 (d) of the
constitution. In that it fails to specify he nullity of the
power, the nature and scope of the statutory instrument
and the principles of tendency. In short, it gives the President a blank cheque.”
BRIDGET MANANAVIRE
THE Judicial Service Commission (JSC) is keen on
establishing why High Court judge Edith Mushore
has not been reporting for duty for weeks on end,
amid concerns over the safety and health of the experienced judicial officer, The NewsHawks has learnt.
Sources say Judge President Maria Zimba-Dube
has asked the JSC to establish where she is after she
went absent without official leave.
Mushore was part of the three-member panel,
together with Jester Helena Charewa and Happias
Zhou, which ruled on Chief Justice Luke Malaba’s
extension of term case.
JSC secretary Walter Chikwana confirmed to The
NewsHawks that Mushore has not been coming to
work for some time now.
“We are not sure why she is not coming. We are
trying to reach her and find out what’s happening.
The JP (Judge President) has asked about the issue,
so did the CJ (Chief Justice). We are even trying to
check with her relatives.
“But so far we have been unable to reach her; we
will continue trying to talk to her.” Chikwana said.
Sources said Mushore is related to James Mushore, the former CEO and founder of NMB Bank,
who almost became Harare’s town clerk after a long
career in banking, only to be scuttled by political
schemers.
Insiders said Justice Mushore, just like other VIPs
in government, is entitled to security from the Zimbabwe Republic Police protection unit (PPU), as
well as the Prison Service.
Justices Mushore, Zhou and Charewa ruled that
Malaba’s tenure as Chief Justice ended when he
turned 70 on 15 May, after President Emmerson
Mnangagwa extended his term by five years following a controversial amendment of the constitution to
allow for the extension.
The ruling was however overturned by Constitutional Court judges, despite the apex court judges
being cited in the case.
Before the judges heard an application by the
Zimbabwe Human Rights NGO Forum executive
director Musa Kika — consolidated with that of the
Zimbabwe Young Lawyers Association — against the
extension of superior courts judges’ tenures, Justice
minister Ziyambi Ziyambi and the, the JSC tried in
vain to block the justices from hearing the case, fearing they would scuttle the power consolidation plan.
Justice Mushore is an experienced practitioner
who has worked at The Hague in the Netherlands
and at the House of Commons at Westminster in
London.
She is a sharp legal mind, who was a long-time advocate based at the Advocates Chambers in Harare.
From 1993 to 1999, she was the legal adviser (Africa) of the International Organisation of Consumer
Unions at The Hague.
Between 1987 and 1989, she was a parliamentary
research assistant at the House of Commons. Before
that, she had served as the corporate legal adviser for
insurance giant Old Mutual.
High Court judge Edith Mushore (left) was part of the three-member panel which ruled on Chief Justice Luke Malaba’s extension of term case.
MPs challenge sweeping Presidential powers
Justice Mushore still Awol
after ruling against Malaba
Legislators argue that Parliament’s primary law-making powers shall not be delegated.
NewsHawks
Issue 55, 5 November 2021
NewsHawks News Page 5
Issue 55, 5 November 202