Analysis| Mnangagwa Uses Expanded Powers As Court Challenge Targets Presidential Senate Appointments
Zimbabwe’s constitutional changes are already being tested as Emmerson Mnangagwa appoints judges while the Constitutional Court considers a challenge to his new Senate powers.
President Emmerson Mnangagwa has begun exercising powers granted to him under Zimbabwe’s latest constitutional amendment, including making new senior judicial appointments, even as the Constitutional Court is being asked to rule on whether another use of those expanded powers was lawful.
A swearing-in order issued on Thursday lists promotions and appointments across the judiciary, including seven judges elevated to the Supreme Court and two appointed to the Constitutional Court. Further appointments have been made to the High Court and Labour Court.
The moves come weeks after Constitution Amendment No. 3 was signed into law. Among other changes, the amendment expanded the President’s role in making senior judicial appointments and created 10 additional Senate seats to be filled by presidential appointment.
It is the latter provision that is now facing a constitutional challenge.
Judicial Appointments Follow Constitutional Change
The swearing-in order lists seven Supreme Court appointments involving Justices Dube, Garainesu Mawadze, Happias Zhou, Joseph Mafusire, Maxwell Takuva, Amy Tsanga and Esther Muremba.
Justice Antonia Guvava and Justice Chinembiri Bhunu are listed for appointment to the Constitutional Court, while other appointments have been made to the High Court and Labour Court. Several of those appointed to the High Court are former magistrates.
The appointments illustrate how quickly the amended constitutional framework has begun to affect the composition of Zimbabwe’s senior judiciary.
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That development is occurring alongside a court battle over another provision of the same amendment, placing two questions before the constitutional order at almost the same time: how far the President’s new powers extend in practice, and whether those powers were exercised in accordance with the conditions attached to them.
Senate Appointments Face Constitutional Challenge
Thamsanqa Ncube and pressure group Ibhetshu LikaZulu have approached the Constitutional Court in an attempt to prevent 10 presidential nominees from being sworn into the Senate.
The respondents include Mnangagwa, Parliament Speaker Jacob Mudenda, Justice Minister Ziyambi Ziyambi, the Attorney-General and the 10 nominees: 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), introduced by Amendment No. 3. The provision permits the President to appoint 10 senators based on their “professional skills and other competencies” after consultation with the National Assembly.
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The applicants allege that the nominees do not satisfy that constitutional requirement, arguing that several are active Zanu-PF politicians or closely connected to the ruling party. They also allege that the required parliamentary consultation was not meaningful.
Those assertions are claims made by the applicants and remain to be determined by the court.
They are seeking an urgent order stopping the nominees from being sworn in while the constitutional challenge is pending. Ncube has argued that the consequences would become more significant once the nominees take their seats because they would then be entitled to participate and vote in Senate proceedings.
“The ten individuals are awaiting swearing-in. Once sworn, they will sit and vote in the Senate with full rights,” Ncube said.
The Court Will Test The Limits Of The New Powers
Amendment No. 3 increased the size of Zimbabwe’s Senate from 80 to 90 members, with the 10 additional positions allocated to presidential appointees.
The Constitutional Court must now determine whether Mnangagwa complied with the constitutional conditions governing those appointments, including the requirement concerning professional skills and competencies and the consultation process.
The dispute is significant because the Senate appointments are not merely a political disagreement over the choice of individuals. The applicants are challenging whether the constitutional mechanism itself was properly followed.
At the same time, Mnangagwa’s judicial appointments demonstrate that the amendment is already being put into effect.
The two developments should not be treated as proof that the Senate appointments were unlawful. The legality of those appointments remains a matter for the Constitutional Court. Equally, the fact that the President has proceeded with judicial appointments under the amended framework does not resolve the separate dispute over the Senate seats.
The court’s ruling will therefore provide an important test of the boundaries of the powers created by Amendment No. 3 and the safeguards attached to their exercise.
