Lawyer Lovemore Madhuku says a ruling allowing a group of war veterans to challenge recent constitutional amendments directly in the Constitutional Court would be a “very big victory” for opponents of the changes.
The Constitutional Court on Tuesday reserved judgement on an application for direct access, in which the war veterans are challenging amendments signed into law in July that removed the direct election of the president by voters.
The application was heard by a three-judge panel led by Deputy Chief Justice Paddington Garwe, sitting with Justices Rita Makarau and Chinembiri Bhunu.
The amendments at the centre of the dispute also changed the presidential term from five to seven years, in effect extending President Emmerson Mnangagwa’s second and final term by two years to 2030.
Madhuku said the applicants are asking the apex court to bypass the High Court altogether.
“The application we were having today is called an application for direct access,” he said.
“It is a procedure which you follow where the High Court has jurisdiction in a matter, but you believe that the matter is such that it ought not to be heard by the High Court but must be heard first and last by the Constitutional Court.
“If that is the case, you must seek leave from the Constitutional Court and ask that they must allow you to come directly.”
At the heart of the case, he said, is whether Parliament can remove citizens’ right to directly elect a president without a referendum.
“The matter which we had brought, which we want to be determined by this court, is that you cannot take away the right of ordinary citizens to vote directly for the president without a referendum,” Madhuku said.
“So even if you have not changed Chapter 4, which is the Bill of Rights, but you do things outside the Bill of Rights which actually affect things in the Bill of Rights, then in that case you have affected the Bill of Rights, and you need a referendum.”
The government opposed the application. Advocate Sylvester Hashiti, representing President Mnangagwa, Justice Minister Ziyambi Ziyambi and Attorney-General Virginian Mabhiza, argued that the applicants had failed both procedurally and substantively.
“Procedurally, the applications did not comply with the rules and requirements in an application of this nature,” Hashiti said.
“Secondly, the applicants did not set out on what basis they were coming to the court. They did not prove that they were registered voters; they did not prove that they were presidential candidates; they did not prove any interest, even a public interest, in why they were approaching the ConCourt.”
He said they had also failed to show why the case was exceptional enough to warrant bypassing the High Court.
Madhuku said if direct access is refused, the applicants will proceed to the High Court. If it is granted, it will be a significant advance.
“If they allow us direct access, it would be a very big victory,” he said. “If this were a football match, we would say it’s halftime, and we are ahead if we get direct access. We would then go and have a hearing.”
The war veterans’ application is one of several challenges to the July amendments, with different legal teams pursuing different approaches.
Madhuku said a case brought by Prince Dubeko Sibanda, which argues that the amendments improperly benefit incumbents, is scheduled for 30 September.
Another challenge has been filed by the MDC led by Douglas Mwonzora, which could be heard together with the other cases.
A further application has been lodged by National Constitutional Assembly member Vhurande Mahlupeko, who contends that provisions were amended despite not having appeared in the government gazette.
A separate challenge has been brought by individuals represented by former finance minister Tendai Biti, with Advocate Lewis Uriri, who assisted Madhuku on Tuesday, also involved.
More: ZimLive
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