Mnangagwa dragged to ConCourt

President Emmerson Mnangagwa has been taken to the Constitutional Court over his appointment of 10 senators, with two applicants arguing that the nominees do not meet the constitutional requirement that the positions be filled on the basis of professional skills and competencies.

Thamsanqa Ncube and pressure group Ibhetshu LikaZulu are seeking an urgent court order blocking the 10 nominees from being sworn into the Senate and ultimately declaring their appointments unconstitutional and invalid.

The respondents include Mnangagwa, Parliament Speaker, Justice Minister Ziyambi Ziyambi, the Attorney-General and the 10 presidential appointees — Jabulani Sibanda, Makhosini Hlongwane, Mary Mliswa, Nokuthula Matsikenyere, Kudakwashe Tagwirei, Godwills Masimirembwa, Lucy Chitaga, General Gibson Mashingaidze, Brilliant Dube and Iren Mutumbwa.

The challenge centres on Section 120(1)(e) of the Constitution, introduced through Constitution Amendment No. 3, which provides for the President to appoint 10 senators based on their "professional skills and other competencies" and following consultation with the National Assembly.

The applicants contend that the appointments do not satisfy that constitutional requirement, arguing that most of the nominees are active Zanu-PF politicians or individuals closely associated with the ruling party.

They argue that the appointments therefore undermine the purpose of the constitutional amendment.

In their application, the applicants argue that the appointments are contrary to assurances given by Ziyambi during parliamentary debate on the constitutional amendment.

Ziyambi had told Parliament that the President's appointment power was subject to constitutional limitations.

"The appointment power is not unbounded. The text requires that these 10 Senators be chosen for their professional skills and competencies," Ziyambi said during the parliamentary debate.

He said the additional senators were intended to bring specialist expertise into Parliament, particularly in areas such as finance, science, law, technology and public health.

The applicants argue that the final list does not demonstrate that the nominees were selected primarily because of their professional expertise.

The applicants are also challenging the process through which the National Assembly was allegedly consulted.

According to Ncube's founding affidavit, the nominees were announced in Parliament before the Speaker declared: "Recommendations put and agreed to."

Ncube argues that the process did not constitute meaningful consultation.

"There was no debate, no question, no point of order, and no opportunity for meaningful consultation," he said.

The applicants further argue that there is currently no adequate legislative or parliamentary framework governing how the constitutional consultation requirement should be conducted.

They contend that the absence of such a framework makes the appointments premature and potentially unconstitutional.

The applicants are urging the Constitutional Court to intervene before the nominees take their seats in the Senate.

They argue that allowing the 10 nominees to be sworn in would create a situation in which they could participate fully in parliamentary proceedings, including voting on legislation and other matters before the Upper House.

"The ten individuals are awaiting swearing-in. Once sworn, they will sit and vote in the Senate with full rights," Ncube said.

The applicants therefore want the court to suspend the swearing-in pending determination of the constitutional challenge.

They are also seeking an order requiring any future appointments to be made only after procedures have been established to ensure compliance with the constitutional requirement relating to professional skills and competencies.

The legal challenge comes shortly after the passage of Constitution Amendment No. 3, which increased the size of Zimbabwe's Senate from 80 to 90 members.

The additional 10 seats are presidential appointments created by the amendment.

The case could therefore provide an early judicial test of the scope of the President's new appointment powers and, in particular, the meaning of the constitutional requirement that the appointed senators be selected on the basis of professional skills and competencies.

The Constitutional Court is now being asked to determine whether the appointments complied with the Constitution and whether the consultation process followed the requirements prescribed by law.