Mujuru has legal options

via Mujuru has legal options – DailyNews Live 30 NOVEMBER 2014 by ALEX T. MAGAISA

LONDON – At its most recent meeting, the Zanu PF politburo passed a number of constitutional amendments whose constitutionality I write about in this piece.

My reading of Section 253 on amendments to the Zanu PF constitution is that it is a long process which requires certain critical steps to be taken and that if they were to follow its strict terms, it could not be done in the swift manner that we have seen in recent days.

In terms of Section 253, the power to amend the Zanu PF constitution is vested in the central committee and not in the politburo.

Therefore, to the extent that the amendments have been done by the politburo, Mujuru could argue that they are ultra vires, that is, that they are beyond the powers of the politburo and therefore unlawful.

Secondly, Section 253 provides that while constitutional amendments are done by the central committee, such amendments are “subject to ratification by congress”.

In each case, a two thirds majority of the members is required. This means until ratification by congress, the amendments do not have the force of law.

However, I suspect Mujuru would struggle on this one unless she believes that congress will consist of sufficiently independent members to resist ratification.

A better bet, in my opinion, would be to contend on the first point, that the amendments have not been done by the central committee but by the politburo, which does not have the relevant power to do so.

If the said amendments are ultra vires, then they would be unlawful.

But her adversaries could still correct this anomaly by simply convening the central committee to railroad the amendments, as they have done in the provinces.

But the best argument would be that the said constitutional amendments are unprocedural.

Section 253 of the Zanu PF constitution sets out a clear procedure in order to effect the constitutional amendments, with timelines that can no longer be met between now and congress.

In this regard Section 253(4) provides that all proposed amendments must be forwarded to the secretary for administration “at least three months before the date of the meeting of the central committee at which the amendment is to be considered”.

Subsection (5) further provides that the proposed amendments must be circulated to the provinces “at least two months before the date of meeting”.

Now, it is plain that the current amendments have not followed that constitutional procedure. These timelines have not been satisfied and unless there is an overriding provision elsewhere which gives them the power to act as they have done, it means the current amendments were unprocedural.

If she wanted, Mujuru could argue that the amendments are patently unconstitutional, for being unprocedural. It does not have to be Mujuru herself who makes this argument, but an ordinary party member who is aggrieved at the flouting of the constitution.

It should be noted also that Section 68 of the new Constitution of Zimbabwe protects the right to fair administrative conduct.

Section 68 states that, “Every person has a right to administrative conduct that is lawful, prompt, efficient, reasonable, proportionate, impartial and both substantively and procedurally fair”.

It goes further to state in subsection (2) that, “Any person whose right, freedom, interest or legitimate expectation has been adversely affected by administrative conduct has the right to be given promptly and in writing the reasons for the conduct”.

Without getting into much detail, persons who believe that their rights or legitimate expectations have been violated are entitled to seek constitutional protection in terms of the supreme law of the land.

Some may argue that Zanu PF is not the State or a public body, but having personally advocated for this right during the constitution-making exercise, I know that it is worded to give it broad scope to apply both to public and private bodies. It was designed to apply as much to persons dealing with private bodies as it does to persons dealing with public bodies.

Mujuru and her allies do have legal options if they wished to resist. The only question is whether there is anyone with the courage to make a challenge. Any failure would not be based on the absence of rights but merely a lack of courage to challenge the system or a realisation of the futility of any such action.

On the vote of no confidence, Section 251 provides that it can be passed by a simple majority of all members of the appropriate organ.

However, where a vote of no confidence is passed against one third of the total membership of any organ, that organ shall automatically dissolve itself and new elections have to be held.

This may not be too helpful to Mujuru as it is as much a danger to her as it is for her adversaries.