Mnangagwa sued

Heal Zimbabwe Trust has filed a constitutional application against President Emmerson Mnangagwa, alleging that he violated principles of public procurement accountability by enacting a law that makes the procurement of certain goods, including construction and medical materials, a secret.

The case, filed in the High Court, saw Heal Zimbabwe Trust, represented by its director Rashid Mahiya, and Chitungwiza Municipality councillor Tonderayi Chiwanza, challenging the legality of the Public Procurement and Disposal of Public Assets Act. The applicants, who have cited both Mnangagwa and the Attorney-General as respondents, are seeking to have the law, particularly section 3(6), set aside.

The application, which was brought before Justice Tawanda Chitapi, argues that the Act violates Section 315 of the Constitution, which mandates open and transparent public procurement. The applicants claim that the Act undermines the principles of public accountability outlined in Chapter 9 of Zimbabwe's Constitution.

The contested legislation was enacted through General Notice No. 635/2023, which was published on May 5, 2023. This notice stated that procurement related to certain medical goods and equipment would not be publicly disclosed. While the notice was later withdrawn, the applicants argue that the provision was passed unprocedurally and violated constitutional principles of transparency and openness.

The applicants contend that the impugned section of the Act promotes corruption by allowing procurement to be conducted in secrecy, undermining the requirement for honesty, cost-effectiveness, and competitive processes. They argue that construction materials, such as those listed in the Act, do not constitute a national security threat justifying non-disclosure.

"The acquisition and procurement of construction materials cannot constitute a national threat for which non-disclosure could be justified," Mahiya and Chiwanza said in their founding affidavits. "This provision undermines transparency, opens the door for corruption, and runs counter to public expectations of openness and accountability."

The applicants attached several documents to their affidavits, including reports on corruption within the health, education, and local government sectors, as well as audits of the Reserve Bank of Zimbabwe and the Zimbabwe National Roads Administration (ZINARA). These documents were cited to highlight ongoing corruption issues that the applicants believe the Act will exacerbate.

In response, the Attorney-General's office, represented by Virginia Mabiza, opposed the application, arguing that the General Notice had been withdrawn and that the applicants had no legal standing to challenge the Act. Mabiza further dismissed the applicants' assertions about corruption, labeling them "incorrect, false, and misleading."

Mabiza also criticized the applicants for not clearly demonstrating how the Act infringed on any specific fundamental rights, and deemed the reports attached to their application as irrelevant to the case.

The legal teams, led by Tendai Biti for the applicants and Lovemore Madhuku for the respondents, submitted heads of arguments before Justice Chitapi. After reviewing the submissions, Justice Chitapi struck the matter off the roll, stating that the applicants had failed to properly address the procedural requirements needed to bring their case before the court.

The judge remarked that the applicants had not attempted to persuade the court to invoke the appropriate rules to support their claim, adding that they had failed to properly approach constitutional litigation as guided by the Constitutional Court. "Too much noise does not win the day," Justice Chitapi concluded, highlighting that the applicants had not properly framed their case according to the High Court's procedural guidelines.

The outcome of the case has raised concerns among the applicants, who remain determined to continue their efforts to challenge the procurement law, which they argue poses a serious threat to transparency and accountability in Zimbabwe's public procurement processes.