Advocate Thabani Mpofu challenges ConCourt composition

A TENSE atmosphere prevailed in the Constitutional Court (ConCourt) yesterday, as Harare-based lawyer, Advocate Thabani Mpofu, challenged its constitutionality, arguing the judges who were about to entertain his case were not properly constituted.

Mpofu made the remarks after his application seeking postponement of a matter had been dismissed by the same court which insisted it was properly constituted and ready to handle the case.

The court, which was led by acting Deputy Chief Justice Elizabeth Gwaunza, was composed of seven Supreme Court judges and two High Court judges.

The composition prompted Mpofu to raise an application seeking "a properly constituted ConCourt", which, according to the Constitution, is headed by the Chief Justice and his deputy together with seven Supreme Court judges.

In his submissions, which, however, did not find favour with the court, Mpofu said paragraph 18(2) of the Sixth Schedule of the Constitution was clear in that it spelt out the specific composition of the ConCourt, which composition was supposed to be complied with at all costs, as contemplated by the legislature.

Mpofu, whose team included Advocate Nelson Chamisa, went on to read the cited paragraph, which says:

"Notwithstanding Section 166, for seven years after the publication date, the Constitutional Court consists of: (a) the Chief Justice and the Deputy Chief Justice; and (b) seven other judges of the Supreme Court; who must sit together as a bench of the Supreme Court."

He added: "For the first seven years both the Chief Justice and the Deputy Chief Justice must sit together and it is common cause that the current court is not properly constituted."

Mpofu's submissions were immediately dismissed by Justice Anne-Mary Gowora, who was deputising Justice Gwaunza, in concurrence with Justices Tendai Uchena, Ben Hlatshwayo and Vernanda Ziyambi, saying it was not the intention of the legislature to create absurdity in the manner the Constitution was crafted.

Justice Gowora said it was inconsistent that Mpofu had brought his matter before the ConCourt bench and yet he was challenging the composition of the same court, to which Mpofu replied that the present court was improperly constituted.

According to Mpofu, his Supreme Court matter, which decision he was challenging, was handled by Chief Justice Luke Malaba, then Deputy Chief Justice, and Justices Paddington Garwe and Bharat Patel.

Justice Gowora said: "If we accept your position, this matter will not see the light of the day at all because we will have to wait for the retirement of the Chief Justice or the expiry of the seven-year period."

The court's sentiments were also echoed by advocates Adrian Phillip de Bourbon and Firoz Girach, who said the court was properly constituted and accused Mpofu of trying to seek a postponement through the back door.

"The legislature could not have envisaged such an absurdity. I abandoned that point, of the court not being properly constituted, after a careful reading of the Constitution, because that is not what was intended by the legislature," De Bourbon said.

After hearing submissions from all the lawyers, the court unanimously agreed there was no merit in Mpofu's point at the outset and dismissed his preliminary point with costs, adding full reasons would follow.