Fresh challenge to Mugabe's powers

BUSINESSMAN Fredrick Mtandah has dragged President Robert Mugabe to court, arguing the 92-year-old leader's use of emergency powers is inconsistent with the country's Constitution.

Mugabe late last month used the Presidential Powers (Temporary Measures) Act to promulgate Statutory Instrument 133 of 2016 (SI) that provides a legal framework for the introduction of bond notes.

But Mtandah, in an urgent chamber application at the High Court on behalf of his company Fedex Financial Services, is arguing that Mugabe's powers are invalid under the new Constitution adopted in 2013.

"I submit that the Presidential Powers Act, in its entirety, is unconstitutional and requires to be struck down," he said.

The businessman submitted that Mugabe is not allowed to pass legal instruments that impinge on legislation passed by another arm of the State.

Mtandah argued that, while the old Constitution allowed the President to make legislation, the country's new governance charter did not give Mugabe such latitude.

Mtandah further argued that even if Mugabe were to contend that the Presidential Powers (Temporary Measures) Act remain valid, he was not allowed by the Constitution to pass legal instruments that amend primary legislation "by-passing Parliament and its functions to make law".

"I respectfully suggest that even if it could be held that the Presidential Powers Act remains consistent with our new Constitution, that the President has acted ultra vires the provisions of Section 2(1) of the Presidential Powers Act," he said.

Mtandah said Mugabe's regulations introducing bond notes also fall foul of the Presidential Powers (Temporary Measures) Act's section 3.

"That section envisages notice being given to the public and for representations by interested persons to be invited … The RBZ (Reserve Bank of Zimbabwe)had given notice of its intention to introduce bond notes as far back as May 2016. I submit, therefore, that there was ample time for these regulations to be made in the fashion envisaged by the Presidential Powers Act and in particular for notice to be given to the public and for representations to be invited," he said.

"Failure to comply with section 3 is fatal and I submit it renders SI 133/16 a nullity."

Mtandah said Mugabe "has no justification" to assert that a situation that requires the use of emergency powers has arisen.

"Even if the Presidential Powers Act was constitutional – which is denied – I submit that it is designed for use by the President to make regulations to deal with situations that are so urgent that it is ‘inexpedient' to wait for Parliament to pass an Act," he continued.

"There was ample time for the bond notes to be mooted in a Bill amending the RBZ Act. The fact that there was no attempt to do so for well over six months and has only been resorted to now, is a clear abuse of power and authority provided by the Presidential Powers Act."

Mugabe, central bank governor, John Mangudya, Finance minister Patrick Chinamasa, the Reserve Bank of Zimbabwe and the Attorney-General are cited as respondents.