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How does the Justice Chiweshe's decision measure against the law
Derek Matyszak, Research and Advocacy Unit
October 03, 2012

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Sometimes politics and law are in direct conflict, and this seems the case with the decision by Justice Chiweshe on the application by the President for further time over the (now) 27 byelections. How does this decision now square with the so-called road map for elections wanted by SADC, and how does it exemplify the rule of law?

The election road map demanded repeatedly by SADC, and apparently agreed to by all political parties, includes a new constitution, electoral reforms, media reforms and realignment of the security sector.

The second stakeholders' conference on the constitution is now set for the end of October. Following this conference, the final draft must then be presented to Parliament within a month. There is thus only political maneuvering to prevent the draft from being presented to Parliament in late October.

Parliament must conclude its debate on the draft within one month. The draft constitution is then to be gazetted and a referendum held within three months. President Mugabe sets the actual date for the referendum within this period. If the draft is approved in the referendum, it must again be gazetted within one month and introduced into parliament for passage into law no earlier than 30 days after gazetting. There is no time limit set for the passage of the Constitutional Bill into law by Parliament, but, if approved by a two-thirds majority in parliament, the President must sign the act into law within 21 days.

So, if the one step follows the other immediately, and without delay, it is legally possible to have a new constitution in place before the end of March, as the only mandatory maximum (rather than minimum time frame) is the 30 day period which must be allowed between the gazetting of the Constitutional Bill and the passage of the Bill through Parliament. However, if the maximum periods provided for in the GPA are applied, the constitution cannot be in place before the end of March. And, as has been seen, the maximum periods provided by the GPA have been ignored and exceeded in every step of the process so far, and there is no reason to think that this pattern will not continue.

The presidential proclamation for elections must set a date for the sitting of the nomination courts no earlier than 14 and no later than 21 days after the proclamation, and an election date no less than 28 days, and no more than 50 days, after the sitting of the nomination courts. Thus

the earliest date for an election after the gazetting of the presidential proclamation is 42 days thereafter and the latest 71 days. For an election to be set for the end of March, the proclamation therefore would have to be in mid-February, 2013, or earlier. Presumably the new constitution would need to be in place before the proclamation if Zimbabwe is to adhere to the road map.

However, having said this, is there a serious intention of the part of ZANU PF to call for elections in March, or has this simply been a strategy to avoid the complications which will arise if the President is seen to be in contempt of court for not setting the dates for by-elections none of the main political parties want?

In any event, the grant of the extension to this date for the three by-elections is a violation of the principle of the separation of powers established by our constitution. The President is already in breach of the law in having failed to call these by-elections and the 24 other that are due. The excuse that this could not be done due to financial constraints has rightly been rejected by the Supreme Court, and was simply a delaying tactic and abuse of the court's process - as was the first application for an extension of time within which to call the by-elections.

The legislature has decided that where a vacancy arises in parliament the president must set the dates for a by-election within 14 days. It is not for the judiciary or the executive to decide that the will of the legislature does not require compliance. It is for the legislature to decide that the law is inappropriate when general elections are pending (they were not at the time most byelections fell due), it is the legislature which must then move an amendment to the Act.

It is not for the courts or the president to decide which laws can be ignored out of political expediency - though unfortunately this is not atypical of the modus operandi of both in present day Zimbabwe.

More importantly, and according the SADC demands, there remain the issues of electoral and media reforms. Ignoring the most pressing issues of security sector governance, policing, etc., there are two other key pieces of legislation needed ahead of elections: those of the amended Electoral Act and the passing of the Human Rights Commission Act.

The Electoral Act and Human Rights Commission Act now merely require the President's signature and gazetting to become law, and it seems that the former has now been gazetted. Gazetting the latter is merely a very first step in setting up an institution that would be capable of meeting its duties during elections as is now envisaged by the amended Electoral Act. But there are far more critical reforms needed if Zimbabwe is to hold credible elections.

Nothing has been done to clean up the shambolic voters' rolls and it is not now feasible to compile new voters' rolls before March, and it is apparent that ZANU PF never had any intention of allowing this to happen in any event. Similarly, ZANU PF will not allow the electronic media to be freed or entertain any reform of security sector governance.

The idea that a new constitution and the Electoral Act will do anything to render the next elections free and fair is hype advanced by all the political protagonists and SADC. In fact, they will have little or no effect on the elections. Bear in mind that the draft constitution provides that most of its provisions are only to come into effect AFTER the elections.

No matter what Electoral Laws are in place, a free and fair election cannot take place without some restraint placed on the security sector. A clear, unequivocal and a public statement from SADC now, that an election carried out in the manner of June 2008 will not be recognised, will go some way to achieving this restraint. Without such an unequivocal statement, the prospect of another 2008, where electoral laws were simply ignored, is ever present. Without the opening of the electronic media to non-ZANU PF aligned voices the election can never be deemed fair. Without the reform of the voters roll the ability to conceal electoral fraud remains. And without a robust ZEC, silence can be expected from this quarter, or at best, the resignation of Commissioners who find such silence unacceptable.

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