Tendai Ruben Mbofana
There is a specific, cold efficiency in how a state can use the very language of the law to dismantle the spirit of the law.
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This week, Zimbabweans witnessed a masterclass in this particular brand of judicial theater.
At the center of the drama was the Zimbabwe Human Rights Commission (ZHRC) and a report that dared to question the legitimacy of public hearings for the Constitutional Amendment (No. 3) Bill.
The government’s response was not to debate the findings, nor to address the concerns of the citizens who felt silenced during the consultative process.
Instead, it reached for a calculator and a magnifying glass, finding a technicality so small it could fit into a footnote, yet heavy enough to crush a constitutional watchdog.
The declaration that the ZHRC report is “null and void” because it was compiled by only three commissioners—falling short of a five-member quorum—is a breathtaking display of selective legalism.
It is a classic “procedural trap.”
To the uninitiated, the argument sounds robust: the ZHRC Act requires five members for a quorum, there were only three, therefore the report does not exist in the eyes of the law.
However, this religious adherence to the “letter of the law” exists in a vacuum of profound hypocrisy.
It ignores the fundamental reality that the inquorate state of the Commission was a crisis of the Executive’s own making.
For months, the ZHRC was left to wither, its membership depleted as terms expired without replacement.
One must ask why an appointing authority, so seemingly obsessed with the sanctity of the ZHRC Act’s quorum requirements, would leave a Chapter 12 institution—one tasked with the monumental duty of protecting human rights—at 33% capacity for so long.
The timing of the “fix” is far too convenient to be accidental.
For months, the Commission functioned in a ghost-like state, yet it was only yesterday, immediately after an unflattering report threatened the progress of a prized Constitutional Amendment, that six new commissioners were suddenly found and sworn in at State House.
The rug was not just pulled; it was pre-loosened months ago, waiting for the exact moment the Commission overstepped the invisible boundaries of Executive tolerance.
This tactical use of the ZHRC Act’s First Schedule, Paragraph 6, becomes even more egregious when contrasted with the government’s utter disregard for the “savings clause” in Paragraph 9 of that same schedule.
Paragraph 9 explicitly states that no act of the Commission shall be invalid “solely because there was a vacancy.”
In any other context, a government interested in the continuity of human rights oversight would have invoked this clause to protect the work of the remaining commissioners.
Instead, the State chose to interpret the quorum requirement as an absolute barrier and the savings clause as a non-entity.
This is not “rule of law”; it is the “rule by law,” where statutes are treated like a buffet—one picks the clauses that serve the immediate political appetite and leaves the rest to rot.
However, the most chilling aspect of this saga is not the math used to kill the report, but the administrative sleight of hand used to remove the messenger.
The “reassignment” of Ms. Jessie Majome from the ZHRC to the Public Service Commission (PSC) is a legal fiction that sets a dangerous precedent for every independent body in the country.
The Attorney General and the Chief Secretary to the President and Cabinet have framed this as a routine transfer, a “constitutionally sound” move that should not be confused with removal.
This argument is not just flawed; it is a direct assault on Section 237 of the Constitution of Zimbabwe.
Under the supreme law, members of independent commissions are granted a specific, shielded status to ensure they can speak truth to power without fear of being unseated.
Section 237(2) and (3) are explicit: a commissioner can only be removed for incapacity, gross incompetence, or gross misconduct.
Furthermore, the procedure for this removal is identical to that of a judge—it requires the appointment of an independent tribunal to investigate the allegations.
By “reassigning” Majome to the PSC, the Executive has effectively invented a “third way” to terminate the tenure of a constitutional watchdog without the messy, public, and evidentiary requirements of a tribunal.
The difference between a Chapter 12 Commission and the Public Service Commission is not merely a matter of office location.
Chapter 12 institutions are, by definition, “Independent Commissions.”
Section 235(1) states they are not subject to the direction or control of anyone.
The Public Service Commission, by contrast, is an administrative arm of the State, existing to execute the policy of the Executive.
To move a person from a position of independent oversight to a position of administrative service is, in every functional sense, a removal from their constitutional mandate.
If a “watchdog” can be moved to a different kennel at the whim of the President, the leash is no longer symbolic; it is absolute.
This “reassignment” logic treats a high-ranking constitutional officer like a junior clerk in the Ministry of Transport.
It suggests that the President’s power of appointment carries with it a permanent, unbridled power of lateral movement across the entire state apparatus, regardless of the specific protections afforded to independent bodies.
This is a total collapse of the “separation of powers” within the administrative state.
If this move is allowed to stand unchallenged, the “independence” of the Zimbabwe Anti-Corruption Commission, the Zimbabwe Electoral Commission, and the Gender Commission is officially dead.
Every chairperson now knows that the price of an “unflattering report” is a sudden “reassignment” to a less sensitive department.
The irony is thick enough to choke on.
The State invalidates a human rights report by citing a strict procedural requirement for a five-member board, yet it removes the head of that board by ignoring the strict procedural requirement for a tribunal.
They are “originalists” when it comes to the ZHRC Act, but “pragmatists” when it comes to Section 237 of the Constitution.
It is a double standard that reveals the true intent behind these maneuvers: the neutralization of oversight.
The report on the Constitutional Amendment (No. 3) Bill was clearly a bridge too far.
By raising fundamental issues about how the public hearings were conducted—perhaps suggesting they were more of a monologue than a dialogue—the ZHRC struck at the heart of the Executive’s legislative agenda.
The response was a swift, two-pronged attack: kill the report with math, and kill the leadership with “reassignment.”
In the end, the swearing-in of six new commissioners yesterday was not a victory for human rights or a restoration of the Commission’s “full complement.”
It was the final nail in the coffin of the Commission’s previous incarnation.
The new board arrives in an environment where the boundaries of their independence have been clearly demarcated by the fate of their predecessor.
They know now that a quorum is only a requirement when the State needs a reason to say “no,” and that constitutional tenure is a luxury that can be “reassigned” away in a single press release.
This is the new constitutional reality in Zimbabwe: the law is no longer a shield for the citizen, but a scalpel for the State, used to surgically remove any voice that dares to suggest that the government might be wrong.
- Tendai Ruben Mbofana is a social justice advocate and writer. To directly receive his articles please join his WhatsApp Channel on: https://whatsapp.com/channel/0029VaqprWCIyPtRnKpkHe08