PRIME Minister Morgan Tsvangirai has threatened to sue President Robert Mugabe for making a series of unilateral appointments which he has described as “unconstitutional, null and void”.Mugabe recently unilaterally appointed provincial governors, judges and ambassadors, angering Tsvangirai who said the president’s actions were unlawful.
Tsvangirai also wants to challenge Mugabe’s appointments in 2008 of Attorney-General Johannes Tomana and Governor of the Reserve Bank Gideon Gono without consulting him.
In a letter to Sadc facilitator, South African President Jacob Zuma dated October 7 in the possession of the Zimbabwe Independent, Tsvangirai said his party was considering taking Mugabe to court over the “illegal” appointments.
“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 says.
“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 to 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.”
Tsvangirai added that: “I have made President Mugabe aware of the legal position and of my concerns on successive occasions and have urged him to respect the law and thus avoid such a confrontation.”
However, constitutional lawyer Lovemore Madhuku told the Independent yesterday that there were no legal remedies for Tsvangirai to what Mugabe has done, adding that the solution for the impasse was “purely political”. He said that the current problem was not a constitutional matter but a political issue.
Madhuku said taking Mugabe to court was a waste of time because Section 31 (K) of the national constitution does not allow the courts to enquire into how the president exercises his discretion.
Section 31 (K) of the Constitution 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 matter – (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 further 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.
Madhuku said because of this section, the Supreme Court would not allow such a lawsuit to be brought before it.
He said: “It can’t even go to the courts. That is how presidents are powerful all over the world. It is simply a non-starter because it is prohibited by the constitution. It must therefore remain a political problem that needs purely a political solution.
“By taking it to court, they want the courts to make a determination of who is telling the truth between the Prime Minister and the President and the courts would have to determine who is bona fide between the two of them when the President swore that he would abide by the Constitution. It is a strange concept.”
Madhuku added that there was no way that Mugabe would tell the courts that he has violated the constitution that he swore to abide by.
Just last week, Deputy Prime Minister Arthur Mutambara suggested that MDC-T should approach the Supreme Court if it had any qualms about matters of constitutionalism. The Supreme Court is the constitutional court of the country.
Mutambara told parliament that the appointments were determined by the Head of State.
“Matters of constitutionalism can only be determined by our courts. The Supreme Court should sit down and decide. There hasn’t been a determination or challenge on the matter,” he said.
Tsvangirai has notified the Chief Justice Godfrey Chidyausiku on the illegal appointment of the judges and the president of the senate Edna Madzongwe and urged them not to consider the governors as members of the senate. He has also written to several countries and the United Nations (UN) over the unilateral appointment of ambassadors. The UN however said it could not deal with the issue. But the European Union says it was considering the matter.