The case in which Prime Minister Morgan Tsvangirai was allowed to sue President Mugabe and his illegally appointed Governors, for violating the Constitution by making senior appointments without consulting him, might be academic if it takes too long.

The case has political implications on power sharing in the inclusive government and potential to affect other key appointments of State officials and voting strengths in Parliament.

In Tsvangirai v Mugabe & 10 Provincial Governors the Prime Minister is contesting the constitutionality of Mugabe’s re-appointment of governors in October 2010 - all 10 from Mugabe’s ZANU-PF - without consulting Tsvangirai.

Former Army Judge Advocate and 2008 Election Chairman, Justice Chiweshe will have the final word.

He says the re-appointments are unconstitutional as Article 20.1.3(p) of the Global Political Agreement (GPA), as incorporated into the Constitution through Constitution Amendment No. 19, stipulates that such appointments should be made by the President “in consultation with” the Prime Minister. 

Section 115 of the Constitution says, “in consultation with” means that “the person required to consult before arriving at a decision arrives at the decision after securing the agreement or consent of the person so consulted”. 

The issue was raised during the GPA negotiations under President Thabo Mbeki and it was agreed Mugabe would appoint the 10 provincial governors according to a formula 5 MDC, 4 Zanu (PF) and 1 MDC (Ncube), but Mugabe blatantly ignored this agreement as well.

Tsvangirai issued a strong public protest on 7th October 2010 saying that the MDC-T would not recognise the appointments; his Senators also raised loud objections to the presence in the Senate of the illegally appointed governors became ex officio Senators. But the protests were to no avail, leading to Tsvangirai’s High Court application seeking an order declaring the appointments null and void.

The effect of such an order would be 10 vacant governorships that the President would be obliged to fill by appointing governors with the agreement of the Prime Minister.

President Mugabe filed a preliminary objection to the proceedings, claiming that Tsvangirai had not, as required by the rules of court, first obtained the leave of the High Court to commence the proceedings, as Rule 18 of the High Court Rules states that before legal proceedings are launched against the President, the would-be plaintiff or applicant has to first obtain the leave of the High Court to proceed.

On 25th May 2012 argument on the preliminary objection was at last heard in the High Court by Justice Chiweshe dismissed who dismissed the objection without giving his written reasons and saying that they would be included in his judgment on the main application which he allowed to go ahead.

The President, however, has filed an application for leave to appeal to the Supreme Court against Justice Chiweshe’s decision, leading Tsvangirai’s lawyers to this week file papers opposing the Mugabe application for leave to appeal.

Justice Chiweshe is due to hear the arguments in chambers on a day still to be notified to the parties. 

On 10th July the case is scheduled to be heard in the High Court, but Justice Chiweshe’s decision of 11th June is still operative, i.e., with the procedural objection out of the way, it is the merits of Mr Tsvangirai’s application that will be argued in the High Court. 

But, if the President succeeds in getting leave to appeal against the decision overruling his procedural objection, and if he then goes ahead and notes an appeal to the Supreme Court, that decision will be suspended, and the hearing of Mr Tsvangirai’s main application will be delayed pending the Supreme Court’s decision. 

During the waiting period, which may be a lengthy one, the status quo regarding the governors will continue.

If the President Mugabe does get leave to appeal at this stage on the procedural objection – there may be a long delay before the appeal is heard in the Supreme Court.

If he does not get leave to appeal on the objection and the main case is heard in the High Court – there is the real possibility that, whichever side wins, the other side will lodge an appeal to the Supreme Court. 

There is a strong possibility of the case being overtaken by events, because, if there are long delays caused by appeals to the Supreme Court the whole question will be rendered academic if it is not concluded before the GPA and the Inclusive Government end and/or a new constitution comes into force.

Appeals to the Supreme Court following Electoral Court decisions against ZANU-PF Parliamentarians after the 2000 elections were delayed so long they fell away when Parliament was dissolved five years later to make way for a new Parliament.

This case involves only one of many accusations of unconstitutional unilateral action leveled against President Mugabe by the MDC-T.  Others were listed by Tsvangirai in the statement of 7th October 2010 that was provoked by the reappointment of the provincial governors, like the appointment, without consultation with the Prime Minister, of Supreme Court and High Court judges and ambassadors.  

And earlier this year there were similar protests about the President’s extension of the terms of office of the Police Commissioner-General and Defence Force commanders.  If the Prime Minister wins this case there would be a legal precedent for revisiting these appointments.  

Equal distribution of the 10 governorships would affect party voting strengths in the Senate, with ZANU-PF losing 6 votes, MDC-T gaining 5 and MDC-M gaining 1.  It might also affect voting strengths in the House of Assembly if, as at one time proposed, MDC-T nominees were to be drawn from sitting members of the House; that would also add to the number of vacancies requiring filling by by-elections. 

All this might be crucial in Parliamentary votes on amending or replacing the present Constitution, where 2/3 majorities are needed in both Houses of Parliament.  It would also affect the election for a new President, if the incumbent dies or retires mid-term.  Under the present Constitution, Parliament would act as an electoral college in a joint sitting of both Houses and the successful candidate has to get a majority of 50% plus at least 1.

Although legally their executive powers are very limited, provincial governors have tended to wield a great deal of influence in their provinces, and having all the governorships in ZANU-PF hands gives the party an advantage in elections.

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