President Mugabe’s lawyer, Maxwell Ranga, in opposing an application by Tsvangirai seeking the annulment of the re-appointment of provincial governors by the President, the lawyer said in terms of Rule 18 of the High Court Rules, RGN1047/1971, it was not possible to sue a sitting President.
The Rule 18 reads: “No summons or other civil process of the court may be sued 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.”
Ranga said it was clear from the said Rule that leave to institute proceedings against the President was required before an application could be instituted against him.
“The Applicant (Tsvangirai) has neither alleged that he obtained such leave, nor has he attached to this application proof of such leave. It is respectfully submitted that no such leave has been obtained in terms of the Rules of this Honourable Court,” said Ranga.
But Tsvangirai, in an answering affidavit said the simplistic interpretation placed on the Rule 18 by respondents leads to absurdities which were not intended when the rule was made.
It does not make sense to argue that one must ‘sue the President for authority to sue the President’.”
“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.
The answering affidavit filed on 21 December 2010.
“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 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.”
Last month Tsvangirai petitioned the High Court to annul the reappointments of provincial governors and resident ministers by President Mugabe arguing they were unconstitutional.
Tsvangirai said he was surprised President Mugabe and the other respondents had taken a “so simplistic a view of the otherwise serious” constitutional issue in his application before the High Court.
The Prime Minister cited President Mugabe as the first respondent. The other respondents are David Karimanzira, Cain Matema, Martin Dinha, Aeneas Chigwedere, Farber Chidarikire, Jaison Machaya, Christopher Mushowe, Angeline Masuku, Thokozile Mathuthu, Titus Malukele and Ignatious Chombo, the local government minister.