Constitutional lawyers Tendai Biti and Professor Lovemore Madhuku say they are confident that legal challenges against the recently enacted constitutional amendment will succeed arguing that the courts have a duty to uphold the Constitution despite concerns over judicial independence.
Speaking during a press conference organised by Sungano yeVanhu - Ubumbano Lomphakathi (The People's Coalition), a broad coalition advocating constitutional democracy, the rule of law and the sovereignty of the people, the two lawyers said multiple applications challenging the amendment had already been filed before the Constitutional Court.
Biti said that by last Wednesday, seven applications had been lodged with the Constitutional Court already beginning case management proceedings.
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"As of Wednesday, there were seven court applications that had been filed in the Constitutional Court. The Constitutional Court on Tuesday at 3pm had a case management meeting in one of the cases and Deputy Chief Justice Garwe read out the list of the cases that had been filed. They also indicated their intention to consolidate some of them depending on the grounds," Biti said.
He said the applications raise several constitutional questions including whether office holders can lawfully benefit from extending their own term limits.
"The grounds are that one does not have a right to extend a term limit and then benefit from the same. I think the provision of Section 328(7) is very clear," he said.
Biti said other legal arguments challenge the manner in which the amendment was passed and allege violations of political rights protected under the Constitution.
"Another major argument is the defective process and another argument is the violation of political rights codified in Section 67, that once you take away the right of people to elect a president, you have assaulted Section 67 which says every Zimbabwean has a right to choose any leader and to participate in any election," he said.
According to Biti, the Constitutional Court is considering consolidating some of the applications while additional challenges are expected to be filed on different legal grounds.
"The thinking of the court is that they may consolidate these applications. More applications are going to be filed using different grounds," he said.
Professor Madhuku expressed confidence that at least some of the cases would succeed dismissing suggestions that the judiciary would simply endorse the amendment.
"We have so many applications in the courts. I can only add that one of those or two will succeed. There is no question of these applications just being applications in the courts. That's what I want to emphasise. They will succeed," he said.
"There is a limit to which the courts, like I've said before, can actually bend the rules."
Madhuku also challenged perceptions that the judiciary was under political control.
"Some people think that they are captured. Like people in Zanu PF, when you talk to them, they are not even bothering reading any of these letters. They just say we are in control of the courts. So, if anything they are totally mistaken," he said.
He urged Zimbabweans to have confidence in the legal process, saying the first hearings could begin in September.
"To our public and everyone, they should expect that these processes will succeed. I am sure we might have the first cases being held in September." he said
Madhuku said the Constitutional Court was likely to group the applications according to the legal issues they raise beginning with challenges to the legislative process before considering objections to the substance of the amendment and if necessary, calls for a referendum.
"Those cases that say that everything was unlawful, the process will start. Then those cases that come in and challenge the content of what was amended. If the procedure was wrong, and some people are calling for the entire throwing away of the Amendment Act, that we have to start. If that fails, then we go into the cases that deal with the content and then if that fails, we go to cases that deal with the referendum.
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"We will not miss. It's not possible for us to miss. We will certainly succeed in that regard and we believe that the judges will do the right thing. They are an arm of state which is separate from the other two arms that have wronged us. So, we rush to the other arm, which is independent by the way and it is guided by the Constitution," he said.
The legal challenges come after the enactment of the constitutional amendment, which has generated intense debate among legal experts, civil society organisations and political actors over its implications for constitutional governance, presidential term limits and citizens' political rights.
