D.Tinashe Hofisi: Reflections

This post contributes to the debate over the constitutionality of the 2nd Amendment to the Constitution. The dominant view posits that the 2nd Amendment altered a term-limit provision and thus cannot benefit any sitting judge. This post shows why this view cannot be sustained.  The 2013 Constitution introduced a new, stand-alone Constitutional Court and with it, a distinction between judges in general and constitutional judges. Whilst all judges continue to serve until the retirement age of 70,  section 186(1) of the Constitution states that  judges serving on the Constitutional Court can only serve for one non-renewable term of up to fifteen years. In other words, the role of constitutional judge is term-limited. This special restriction on constitutional judges is borrowed from continental Europe where it is an integral part of Constitutional Courts including those in Germany (limited to twelve years), France (limited to nine years) and Italy (limited to nine years).  Victor Ferres

Photo Credit: Justin Mutenda The government of Zimbabwe recently announced its intention to ring fence members of the National Prosecuting Authority (NPA) in prosecutorial villages to ostensibly offer protection and curb corruption. Public prosecutors are under intense scrutiny due to claims of compromise and corruption. There are currently two public prosecutors in detention and another yet to be apprehended in connection with bail decisions in armed robbery cases. The constant claims of corruption and subversion of prosecutorial guidelines all evince systemic problems rooted in the 2013 Constitution.  During the 2013 constitutional reform process, members of the MDC-T were keen to reform the office of Attorney General. As the officer responsible for public prosecutions, the Attorney General was an indispensable cog in the government’s persecution of opposition members. Not only were requests for prosecution of ZANU PF activists ignored, but the then Attorney General, Johannes Tom

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. This state of aff

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, they

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 a constitution

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, whatever outco

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 never  a benign for