Joyce Teurai Ropa Mujuru v The President of Zimbabwe and Others

The President of Zimbabwe issued the Presidential Powers (Temporary Measures) (Amendment of Reserve Bank of Zimbabwe Act and Issue of Bond Notes) Regulations, 2016 (SI 133/16) on 31 October 2016, pursuant to section 2 of the Presidential Powers (Temporary Measures) Act [Chapter 10:20]. These regulations amended the Reserve Bank of Zimbabwe Act to allow for the issuance of bond notes as legal tender. The applicant, Joyce Mujuru, challenged this action, arguing that the President and Parliament failed to fulfil their constitutional obligations under the 2013 Constitution. She contended that section 2(2) of the Presidential Powers Act, which permits the President to amend Acts of Parliament through regulations, was inconsistent with section 134(a) of the Constitution, which provides that Parliament's primary law-making function cannot be delegated. The applicant had previously filed a similar application in November 2016, which was dismissed as speculative before the bond notes were actually issued.

• Whether the application was properly brought before the Constitutional Court under section 167(2)(d) of the Constitution (failure to fulfil constitutional obligation) rather than section 85(1) (violation of fundamental rights)
• Whether the President failed to fulfil a constitutional obligation by invoking section 2(2) of the Presidential Powers Act to issue regulations amending an Act of Parliament
• Whether Parliament failed to fulfil a constitutional obligation by allowing section 2(2) of the Presidential Powers Act to remain on the statute books after the 2013 Constitution came into force
• Whether it is a constitutional obligation of the President to analyze all laws under which he acts to ascertain their compliance with the Constitution
• Whether costs should be awarded in constitutional litigation

The preliminary point raised by the respondents was upheld. The application was struck off the roll with costs against the applicant.

The binding legal principles established are: (1) An application alleging failure to fulfil a constitutional obligation under section 167(2)(d) cannot be based on conduct that constitutes lawful application of an existing, unchallenged statute; (2) All existing laws enjoy a presumption of validity and constitutionality until declared invalid by a competent court; (3) The Constitution does not impose an obligation on the President or Parliament to independently assess the constitutional validity of existing legislation - that function belongs exclusively to the courts; (4) Where the gravamen of a complaint concerns the constitutional validity of a statute, the proper procedure is to approach the Constitutional Court under section 85(1) alleging violation of fundamental rights, not under section 167(2)(d); (5) A constitutional obligation that can ground a section 167(2)(d) application must be readily ascertainable, specifically imposed on the President or Parliament, and not one that requires primary determination by the courts or another organ of state; (6) One cannot impugn constitutionally lawful conduct premised on proper application of valid law without challenging the constitutional validity of the law itself.

The Court made several non-binding observations: (1) The Court noted that paragraph 10 of the Sixth Schedule to the Constitution provides that all existing laws remain valid but must be construed in conformity with the Constitution, reinforcing that the Constitution did not automatically invalidate the Presidential Powers Act; (2) The Court distinguished between constitutional obligations that are readily ascertainable and those which are not, with only the former being suitable for section 167(2)(d) applications; (3) The Court discussed the general principle that costs are not usually awarded in constitutional litigation to avoid chilling effect on constitutional litigation, but emphasized that courts retain discretion to award costs in appropriate cases; (4) The Court observed that the applicant's claim was essentially seeking a declaration of unconstitutionality of section 2(2) of the Presidential Powers Act, though not framed as such; (5) The Court noted that Parliament's Legal Committee was in the process of scrutinizing the statutory instrument, indicating that internal parliamentary processes were available; (6) The Court emphasized that taking a calculated risk in proceeding with litigation despite clear warnings about procedural defects may justify a costs order even in constitutional matters.

This case is significant in Zimbabwean constitutional law for clarifying: (1) The distinction between applications under section 167(2)(d) (failure to fulfil constitutional obligation) and section 85(1) (violation of fundamental rights); (2) The presumption of validity and constitutionality that attaches to existing laws until declared invalid by a court; (3) That the President and Parliament are not obligated to independently assess the constitutional validity of existing legislation - that is the role of the judiciary; (4) The principle that conduct pursuant to valid, unchallenged legislation cannot form the basis of an application for declaration of failure to fulfil constitutional obligation; (5) The parameters for awarding costs in constitutional litigation, establishing that while costs are generally not awarded, courts retain discretion to award costs in appropriate cases, particularly where procedural defects are clear and litigants proceed despite warnings. The case reinforces the separation of powers doctrine and the judicial monopoly on constitutional review in Zimbabwe.