ConCourt under spotlight after granting direct access in “dubious” 2030 term case

HARARE – Zimbabwe’s Constitutional Court (ConCourt) has found itself at the centre of a growing political and legal controversy after granting direct access to an application challenging Zanu-PF’s plan to extend President Emmerson Mnangagwa’s term of office to 2030, amid allegations that the case itself may be legally dubious.

On Monday, the apex court granted Ibhetshu LikaZulu and its secretary-general, Bulawayo-based activist Mbuso Fuzwayo, leave to approach the court directly in terms of Section 167 of the Constitution and Rule 21 of the Constitutional Court Rules.

The applicants intend to challenge Zanu-PF’s 2024 national conference resolution seeking to extend Mnangagwa’s presidency beyond the constitutional two-term limit, which expires in 2028.

The matter was heard by ConCourt judges Paddington Garwe, Ben Hlatshwayo and Bharat Patel. The court directed Fuzwayo to file the substantive application within five days, after which the respondents will have three days to respond.

In their founding papers, the applicants argue that the ruling party’s resolution violates key constitutional provisions, including sections guaranteeing political rights, equal protection under the law and strict procedures for amending presidential term limits.

They maintain that any amendment benefiting an incumbent president would require a national referendum under Section 328(7) of the Constitution.

The respondents cited in the application include President Mnangagwa, Justice Minister Ziyambi Ziyambi, Speaker of Parliament Jacob Mudenda and Attorney-General Virginia Mabiza.

While the court acknowledged the national importance of the constitutional issues raised, the decision to grant direct access is likely to trigger debate within legal and political circles.

Direct access to the Constitutional Court is typically reserved for exceptional cases where it is deemed to be in the “interests of justice,” often due to urgency or the inability of lower courts to adequately address the matter.

However, emerging claims from political analysts and legal observers suggest the application may not be a straightforward constitutional challenge.

Commenting on X, political analyst Davis Laque has also raised questions about the timing and legal basis of the constitutional challenge itself, arguing that the matter may be procedurally premature.

Laque noted that Zanu-PF’s 2030 resolution remains an internal party decision that has not yet translated into a bill before Parliament, let alone a constitutional amendment.

He questioned why the ConCourt was being asked to adjudicate over a party resolution that has not produced any direct legislative or executive action.

“Why appeal against a voluntary institution’s internal party resolution which, at this stage, has not resulted in a bill being tabled?” Laque asked.

According to Laque, approaching the ConCourt at this stage risks pre-empting the legislative process and could inadvertently contribute to the emergence of what he terms a “judicial presidency,” where courts are drawn into resolving political questions before they mature into justiciable disputes.

He argued that such a premature appeal may effectively neutralise future legal challenges by exhausting judicial remedies before Parliament formally acts on the resolution.

Allegations have surfaced that the case could be a contrived or collusive legal action, designed to secure a dismissal that might later be used to legitimise the proposed 2030 term extension.

Sources familiar with the matter allege that political and legal actors linked to the ruling party may be involved in orchestrating the litigation, raising concerns that the court could be drawn into a broader political strategy surrounding succession battles within Zanu-PF.

Legal experts have constantly cautioned that if the allegations are substantiated, the matter could amount to an abuse of judicial process, as sham or collusive litigation undermines the integrity of the courts and the rule of law.

They have also warned that the controversy risks further politicising the judiciary.

Zanu-PF has maintained that the Constitution can be amended through parliamentary processes, while critics insist that extending an incumbent president’s term without a referendum would be unconstitutional.