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High Court application update
National Constitutional Assembly (NCA)
February 26, 2013

The matter in which the NCA is seeking a court order for the President to give Zimbabweans more time before the referendum was heard by the High Court yesterday. It was heard in chambers as an urgent application. The presiding judge was the Judge President, Justice George Chiweshe. The President was represented by a team of lawyers led by Deputy Attorney General Mr. Prince Machaya. The NCA was represented by Mr. Alec Muchadehama and Andrew Makoni from Mbidzo, Muchadehama and Makoni.

The President, through his lawyers, raised a preliminary point challenging the jurisdiction of the High Court. They argued that the President had certain prerogatives which cannot be questioned by the courts. One such prerogative is setting a date for a referendum. The President's lawyers argued that the court had no powers to review the President's decision of setting March 16 as the date of the referendum. On that basis alone, they wanted the court to dismiss the NCA application. They relied on a section on presidential powers in the Constitution of Zimbabwe. For the NCA, Mr. Muchadehama submitted that the High Court had jurisdiction to review the decision of the President. He argued that the section of the Constitution of Zimbabwe relied on by the president's lawyers for their argument was not applicable and that every exercise of power by the President was subject to review by the courts.

The judge reserved judgment on this preliminary point and promised to make his decision on Wednesday, 27 February. It is that decision on Wednesday which will determine whether or not the case proceeds to the merits. On the merits, the NCA is seeking an order to set aside the March 16 date and for the President to give Zimbabweans at least two months to study the Draft Constitution and make up their minds.

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