Zimbabwe's Supreme Court reserved judgment Thursday in a lawsuit by a civil activist challenging the 2009 appointment of ten extra ministers in violation of the constitution.
Voice of Democracy Trust director Moven Kufa wants the ministerial posts lopped from 41 to 31 in line with the nation's charter. But after hearing arguments, the court said it was not ready to make a determination.
While President Robert Mugabe's Zanu PF party and the two formations of the MDC had agreed after protracted negotiations to create a cabinet with 31 ministers, they went on to violate the constitutional provision by adding ten more posts.
High Court Judge President George Chiweshe last year ruled that indeed the number of cabinet ministers was not in sync with the constitution, but said he could not grant Kufa's application fearing it would destabilize the unity government.
This prompted him to appeal to the Supreme Court. Kufa's lawyer, David Ocheing told the constitutional court that the High Court had erred in its ruling.
"The nub of the argument is that by appointing more ministers than the constitution allows, the president acted illegally and those appointments must be set aside," said Ocheing.
But Advocate Lewis Uriri, representing Mr. Mugabe, Prime Minister Morgan Tsvangirai and the ten affected ministers, said Kufa had no legal standing to litigate in the first place.
"The appellants in the matter do not have the legal standing to bring the application that they did, in that they do not have a sufficient legal interest special to themselves as opposed to the generality of the population," Uriri argued.
"In other words, there is no right in our law to seek to vindicate a public interest, a violation that is alleged to related to the whole of the population."
Uriri also argued that the use of the word “shall” in the Constitution was directory. As such, he said the appeal must be dismissed.
But Ochieng countered that every citizen had a right to ensure those in positions of authority adhered to the governing charter.
Article 20 of Schedule 8 of the Zimbabwe Constitution amended following the formation of the coalition government in 2009 reads; “There shall be thirty-one ministers with fifteen nominated by Zanu PF, thirteen by MDC-T and three by MDC-M.”
If Kufa's appeal is granted, 10 ministers, including Henry Madzorera, Saviour Kasukuwere, Walter Mzembi, Sekai Holland, Giles Mutsekwa, Sylvester Nguni, Joseph Made and Flora Bhuka will lose their posts.