D.Tinashe Hofisi: Reflections

The US presidential election takes place on 3 November 2020. One week from today, Donald Trump could be re-elected or, as suggested by the polling data, Joe Biden will become the 46th President of the United States. This post explores the implications of a potential Biden/Harris victory on relations between Washington D.C. and Harare.   Currently, there is no scope for government to government assistance between the US and Zimbabwe, save in the humanitarian sector. Thus, cooperation remains  alleviatory. The US$318 million provided by the US in 2019 was in such fields as health, humanitarian and food assistance as well as disaster relief. This dwarfs the US$500 million provided annually to neighbouring Zambia for instance. Further, it does little to account for the absence of non-humanitarian government to government assistance and non-eligibility for assistance through such avenues as the African Growth and Opportunity Act and the Millennium Challenge Corporation. Thi...

The Judicial Service Commission (JSC) held interviews for Constitutional Court judges on 28 September 2020. This will enable formal separation of the Supreme Court from the Constitutional Court. The 2013 Constitution provided a seven-year transition in which Supreme Court judges doubled as the Constitutional Court panel. In spite of the arduous and at times rigorous interview process, it is highly likely that the five acting judges of the Constitutional Court will simply be made substantive. This has significant implications on the court's jurisprudence.   The interview process was profoundly technical and challenged candidates on their knowledge of procedural requirements, substantive law and institutional design. It was clear that the judges were, without exception, more comfortable in the procedural realm as opposed to the substantive questions of legal rationale. They could more easily state the correct procedure, but struggled to account for why it exists. In other words,...

This post is a response to Dr. Alex Magaisa’s “ The trouble with our judiciary .” In that piece, Dr Magaisa uses the decision in Gonese & Majome vs Parliament & Others CCZ 4/20, together with the failure to hold public interviews, as evidence that the very men and women with the power to defend the Constitution are conspiring to trash it . These are strong words and grave allegations. As a student of Constitutional Courts, I have a keen interest in the public’s perception of judicial bodies as well as the distance between judicial outcomes and how they are shaped and presented for public consumption. Thus, the allegations warrant further attention. 1.     Unconstitutional constitutional amendments In the Gonese case, the Constitutional Court ruled that passage of Constitution of Zimbabwe Amendment (No.1) Bill in the Senate was constitutionally invalid as the threshold of two-thirds was not reached. For Dr.Magaisa, this marks an important precedent that ...

This week I offer an update of court cases and developments in the opposition in the context of the 7 th anniversary of the 2013 Constitution. 1.      29 May 2020 Ruling On Friday 29 May 2020, Justice Chitapi will deliver a ruling on an application to stop further recall of MDC Alliance parliamentarians. The ruling will determine whether the Alliance application is properly before the court. Several issues were raised concerning the application including the capacity of the Alliance to sue in its own name. If that ruling is in favour of Dr.Khupe, the case will be dismissed. If the ruling is in favour of the Alliance, then lawyers will argue whether the court should stop any further recall of MP's. This is unconnected to the cases filed to challenge the actual recall of four parliamentarians. The Friday ruling will indicate whether lawyers can argue to stop further vacancies being announced whilst the Alliance challenges the recall of its MP's. Thus, wha...

This week I look into the rationale for parliamentary recall, why it persists and the way forward for opposition politics. 1.     Background The original Lancaster House Constitution did not contain a right of recall. In fact, two members of (PF) ZAPU crossed the floor and joined ZANU (PF) in the 80’s without facing expulsion. When ZANU PF itself faced internal desertion, it created this law to buoy its dominance. Robert Mugabe expelled his Secretary General, Edgar Tekere, from ZANU PF in 1988. However, Tekere retained his parliamentary seat, leading to  a constitutional amendment establishing parliamentary recall. Therefore, this law was enacted for two reasons: to ensure party ouster resulted in parliamentary expulsion as well as to prevent defections from party membership. Overall, this law was meant to bolster ZANU PF’s conflation of party and state whilst grounding its “one center of power” principle. This shows how parliamentary recall was ...

Four MDC legislators were recalled from Parliament on 5 May 2020. Charlton Hwende, Prosper Mutseyami, Tabitha Khumalo and Lillian Timveos’ seats were declared vacant pursuant to the powers bestowed by the Supreme Court judgment of 31 March 2020. In that ruling, leadership of the MDC was returned to Dr. Thokozani Khupe pending an exraordinary congress. The Chamisa formation had reacted with characteristic defiance , avoiding judicial scrutiny by insisting on the MDC Alliance identity. However, this ejection is the first indication that claims of the non-consequential nature of that judgement were misplaced. I previously suggested that adopting the MDC Alliance identity meant relinquishing that of the MDC which would come with loss of real power. In this post, I deal with some of the controversies associated with this development. 1.     How can the people who represented the MDC Alliance be recalled by the leader of the MDC/MDC-T ? Many have ques...