Maravi

(NEWZIMBABWE) Sue the president, insania mera

Sue the president, insania mera
By: Itayi Garande
Posted: Friday, November 26, 2010 9:31 pm

MDC-T leader Morgan Tsvangirai has added one more incident to the growing list of gaffes by 'suing' President Mugabe whose position was placed beyond the reach of judicial direction, in the exercise of his constitutional, statutory and political powers.

Tsvangirai wants the Supreme Court to rule on what he terms the "violation" of the Global Political Agreement (GPA).

Under Section 20.1.3 (p) of Amendment No. 19, President Mugabe appoints ambassadors "in consultation with the Prime Minister, (and) makes key appointments the President is required to make under and in terms of the Constitution or any Act of Parliament".

The Amendment is silent on reassignments.

If the president decides to reshuffle or reassign ambassadors, he does not need to consult the prime minister as these are not (new) appointments.

In any case, as the law stands, the Supreme Court will not entertain a suit seeking a ruling directed at a sitting President.

In some countries like the US, suing a sitting president could be done through a venerable little-known method of judicial control over executive action, called "nonstatutory review."

Courts in that country could use this form of suit to review executive branch behaviour in a few instances; but this procedure only exists where there is a clear misuse of executive authority.

This "nonstatutory review" allows for the creation of remedies against unlawful government action and allows courts not to wait for Parliament to create statutory remedies.

The Zimbabwean situation is very different. There is no such legal recourse.

Reassignment of ambassadors and reappointment of governors cannot be categorised as "unlawful government action"; and there is no statutory remedy available for matters involving the implementability of the global political agreement.

Debates to this effect are purely academic in nature and are mere moot points.

Zimbabwe's constitution stipulates that a sitting president cannot be sued, and cannot be the subject of any civil or criminal proceedings; besides the GPA itself being an unenforceable political agreement.

Section 30 (1) of the Constitution stipulates: "The President shall not, while in office, be personally liable to any civil or criminal proceedings whatsoever in any court."

The resultant effect of this provision is that a sitting President will not be sued for "things done or omitted to be done by him before he became President; or things done or omitted to be done by him in his personal capacity during his term of office as President".

This also means that the President shall not be brought before the courts, or any enforcement body, for any debt or liability, incurred or accrued before or during his term of office. Any such debt or liability shall be suspended during his term of office as President.

Mr Tsvangirai and his advisers have erred in their desire to bring the President before the courts.

Unfortunately, the move is of no consequence (legally or politically) and this adds to a litany of MDC-T and Tsvangirai's political gaffes and missteps and legal blunders.

The move calls into question Mr Tsvangirai's political judgement and leadership capabilities; especially his suitability for occupying the Office of the President.

Mr Tsvangirai's move, however, is merely a cynical game of political one-upmanship. He wants to play the judicial branch against the executive branch to benefit his party's political prospects at the next election.

It's unclear who in the MDC-T, apart from the most rabid anti-Mugabe critters, would support such a move; unless it creates enough crisis to warrant another boycott of the election and thereby extend Tsvangirai's relevance in Zimbabwean politics.

* Comments and suggestions to: itayig *** hotmail.com

Labels: GLOBAL POLITICAL AGREEMENT, MORGAN TSVANGIRAI, SUPREME COURT

posted by MrK @ 1:06 AM