By Mari Matutu | Emmerson Mnangagwa’s huff to change the Constitution has hit a hard brick wall, despite receiving support from his surrogate Douglas Mwonzora.
It’s 9 days to Luke Malaba’s retirement. I see a lot of people are so worried with the passing of bill number 2, while on the other hand Mr Emmerson Mnangagwa is totally knocked down in fear.
My findings are supported by experts such as Dr Alex Magaisa wrote: If the retirement age is raised to 75 years as proposed, it has the effect of extending the length of time that a person may hold or occupy the office of a judge. This is precisely what is covered in section 328(7).
It states that an amendment that extends the length of time that a person may hold or occupy public office does not apply to any person who holds or held office before the amendment.
Even if the retirement age is raised to 75yrs, the current Chief Justice and other judges cannot benefit from it. They must retire at 70. To allow them to remain in office beyond age of 70 would be a breach of section 328(7) and an indirect and unlawful amendment of the same provision.
The Constitution is very clear in section 328(2) that any amendment to its terms must be done in express terms. If the government wants to amend section 328(7) and allow the extension of term-limits to benefit incumbents, then it must do so in express terms.
This is the test to your leadership and lawyers. If you see a National leader mourning about passing of
bill number 2 by senate, then go and read Jeremiah 9v17-18.
We all participated in 2013 constitutional making. If this bill ever comes into law or if Zanu go past 15 May 2021, then do not Mwonzora or Zanu. Stop hiding behind fingers. These are known criminals but you have more duty than any one else to take over.
If Chamisa cannot take charge of a clear ground like this then he is not worth voting for because he will give away power to anybody. Actually he will be a security risk to the nation. Everything is now in his
favour. Correct moves is what is left.
I) Here is why I say so
A) The 2013 constitution gave three distinct authorities to three arms of
state. Unlike the old constitution where we had three arms of state which
did not state origin of authority to exercise in Executive or Legislature
or Judiciary, the 2013 constitution is specific and clear.
B) The 2013 constitution puts every citizen at equal level and give citizens
rights and duties which are above those given by constitution. Section
67(2)(d) gives right to a citizen to challenge in any manner as long it is
peaceful the actions of government or any cause. Section 149 allows
every citizen to challenge a bill or an Act of parliament to be repealed.
Section 167(3) allows any interested person to challenge the
constitutionality of bills of parliament.
C) The 2013 constitution is clear to state that authority held by public
officers is public Trust which must be exercised in consistent with the
constitution . The public officers must be ready to serve the people of
Zimbabwe and not to rule them.
D) Members of security sector were given a well spelt conduct
208 Conduct of members of security services
(1) Members of the security services must act in accordance with this Constitution and the law.
(2) Neither the security services nor any of their members may, in the exercise of their functions-
(a) act in a partisan manner;
(b) further the interests of any political party or cause; (c) prejudice the lawful interests of any political
party or cause; or
(d) violate the fundamental rights or freedoms of any person.
(3) Members of the security services must not be active members or office-bearers of any political party or
organisation.
(4) Serving Members of the security services must not be employed or engaged in civilian institutions
except in periods of public emergency.
E) Members of civil service’s conduct was well spelt as 200.
Conduct of members of Civil Service
(1)Members of the Civil Service must act in accordance with this Constitution and the law.
(2)No member of the Civil Service may obey an order that is manifestly illegal.
(3)No member of the Civil Service may, in the exercise of their functions—
(a)act in a partisan manner;
(b)further the interests of any political party or cause;
(c)prejudice the lawful interests of any political party or cause; or
(d)violate the fundamental rights or freedoms of any person.
(2)Members of the Civil Service must not be office-bearers of any political party.
(3)An Act of Parliament must make provision to ensure the political neutrality of the Civil Service.
F) The 2013 constitution made the courts be independent by stating the
following
164 Independence of the judiciary
(1) The courts are independent and are subject only to this Constitution and the law, which they must
apply impartially, expeditiously and without fear, favour or prejudice.
(2) The independence, impartiality and effectiveness of the courts are central to the rule of law and
democratic governance, and therefore—
(a) neither the State nor any institution or agency of the government at any level, and no other person,
may interfere with the functioning of the courts;
(b) the State, through legislative and other measures, must assist and protect the courts to ensure their
independence, impartiality, dignity, accessibility and effectiveness and to ensure that they comply with the
principles set out in section 165.
(3) An order or decision of a court binds the State and all persons and governmental institutions and
agencies to which it applies, and must be obeyed by them.
G) The constitutional Court was made the highest decision making body.
The decision of President, or parliament or Speaker are subject to
determination of a properly constituted, competent, impartial and
independent court.
Section 167(3)
The Constitutional Court makes the final decision whether an Act of Parliament or conduct of the
President or Parliament is constitutional, and must confirm any order of constitutional invalidity made by
another court before that order has any force.
H) The 2013 constitution made it clear in section 86(3)(e) that there is no
law that can be put in pace to limit a fair trial.
II) Having said this it is clear. Crystal clear that the regime can only survive with our own consent.
All the tools are available at our disposal. We must stop trusting people like Innocent Gonese,
Tendai Biti, Job Sikhala or Jameson Timba. If we trust them or their judgement it is at our own
peril. These are the professional mourners put to rail road our democracy doom. I am not
interested in talking much about them. Except to say we gave them a year to challenge the
nonsense. Beside being louder in mourning they do not take correct action when needed. That
is for another day.
Strategy to be taken by citizens direct is three fold
A) The section 149 approach. Do not expect the regime to accept your
petitions. It is procedural. Raise 2million petitions that must tell the
Speaker to stop any proceedings of these bills because they violate a lot
of other provisions and violate fundamental rights of citizens as well as
ICCPR. That petition serve as proof that the bill is unlawful
B) Use section 67(2)(d) to create a manner of challenging the bills and
action of regime in a Court that is impartial where you use section 35(4)
as your duty that is over and above the ones imposed by constitution.
You sue UN, AU, SADC and the regime to attend to the collapse of
Judicial arm of state which we cannot allow to be molested while we
watch.
C) Approach the Clerk of Constitutional Court, apply that the Court that sat
as CC by Makarau , Patel and Gorowa be declared unconstitutional.
Apply that no one must purport to be CC in terms of s166 if the law has
not been followed.
III) If we cannot stand up on this then lets shut up. If Chamisa cannot command this then lets give up. Malaba has to retire in 10 days. All what they do after is in dispute. Once Malaba retires there is no CC, SC or HC. It will be our own choice to legitimise those courts.
Instead who so ever shall be arrested and stand before anyone purporting to be court after 15 May is regarded as a political prisoner. That court has no section 162 Judicial authority. We laid out how Judicial authority is conferred as a people. No one can come behind our back giving some other judicial authority to someone.