Tsvangirai through top Harare lawyer Selby Hwacha approached the High Court on November 24, 2010 seeking to reverse the unilateral re-appointment of 10 Zanu PF provincial governors by the veteran leader.
The MDC leader argued that the re-appointment of governors announced to him in November 2010 by Mugabe was unconstitutional.
“The first respondent is aware of his constitutional obligations,” Tsvangirai said in his court application.
“He is aware and that he cannot appoint provincial governors without my agreement. With respect, it is my expectation that the first respondent will readily admit and concede that the important issue and key appointment of provincial governors has been discussed between us and through our respective negotiating teams precisely for the reason that he cannot lawfully make the appointments alone.”
“The matter has been on the agenda in various Sadc facilitated meetings held in January 2009, November 2009 and as recently as August 2010,” reads Tsvangirai’s application. Tsvangirai asked the High Court to ensure that “the rule of law in Zimbabwe is upheld at all levels”.
But Mugabe’s lawyer Terence Hussein had said in court papers Tsvangirai had been “rash and ill advised” and could not sue the president citing Rule 18 of the High Court which says: “No summons or other civil process of the court may be issued out against the president or against any of the judges of the High Court without the leave of the court granted on court application being made for that purpose.”
In an answering affidavit lodged by Hwacha, instructed by Advocate Thabani Mpofu, the premier asserted Rule 18 does not apply in Constitutional matters and therefore the president can be sued in this instance.
“I am advised and respectfully believe that the context of Rule 18 of the administrative rules of this Honourable Court is inapplicable in the circumstances of this case generally and in constitutional cases in particular,” Tsvangirai’s lawyer says in court papers.
“It appears to me, that Rule 18 came about during the pre and post-colonial era of a ceremonial, non-executive head of State such as the Queen of England, governors of southern Rhodesia, Presidents of Rhodesia and the first President of independent Zimbabwe,” Tsvangirai’s papers said.
“This is no longer the position in Zimbabwe’s constitutional democracy. Rule 18 was not designed to and cannot be used to defeat or delay superior rights and obligations enshrined in the constitution especially where the issues are of importance as the case here.”
High Court judge George Chiweshe in a ruling on Monday, concurred with Hwacha’s arguments, saying the president can be sued in this instance.
“Whereupon, after reading documents filed of record and hearing counsel, it is ordered that the point in limine raised by the respondents (Mugabe and 10 governors) be and is hereby dismissed,” Chiweshe’s states in his ruling.
“The respondents be and are hereby granted leave to file and serve their opposing papers within 10 days from the date of this order. Thereafter the parties shall proceed in terms of the Rules of Court.”
Chiweshe said the matter will be heard on the merits on July 10.
The judge said his reasons shall be contained in his main judgment. – Daily News