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Zimbabwe's Elections 2013 - Index of Articles
and after: old wine in new bottles - The constitutional court ruling
on the election date
Derek Matyszak, Research and Advocacy Unit
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On Friday 31st
May, 2013 the newly established Constitutional Court issued its
that is the case of Jealousy Mbizvo Mawarire v Robert Gabriel Mugabe
N.O. and Ors CCZ1/13. The judgment concerned an urgent application
by Mr. Mawarire, brought on the basis of a claim that the President
was constitutionally obliged to set the dates for Zimbabwe's
next general election no later than the day after the 29th June,
2013 when Parliament reaches the end of its constitutionally prescribed
five year term. The failure to do so, Mr. Mawarire maintained, was
a breach of his constitutional rights and would have the unconstitutional
effect of the country being governed without a Parliament.
The case had
various bizarre and curious facets even before the judgment was
delivered. President Mugabe had repeatedly stated his desire to
hold elections as soon as possible after the passage of the new
constitution into law on the 22nd May, 2013 and well before October
29th, 2013, the date the MDC formations had contended was the latest
possible constitutional date for the poll.
Thus the immediate
question which arose was, if this was the President's desire, why
did he not exercise his presidential prerogative to dissolve Parliament
and announce the earlier election date? Since Parliament
was required to bring the new constitution into being, the dissolution
of Parliament could not take place before the passage of the Constitutional
Bill. But this could not have prevented proclamation for the dissolution
of Parliament at a future date that allowed ample time for the legislature
to pass the Constitutional Bill.
MDC formations and SADC all insisted that elections needed to await
various reforms to Zimbabwe's democratic terrain and that a later
election date was thus desirable in order to allow sufficient time
for these reforms to be implemented. There was also the difficulty
that, prior to the adoption of the new constitution; it was a constitutional
requirement that the MDC-T Prime Minister, Morgan Tsvangirai, had
to be consulted on the date of the dissolution of Parliament, if
it were to be dissolved by proclamation rather than by automatic
dissolution through the passing of time.
Court ruling that the President was legally obliged to call elections
prior to the dissolution of Parliament on the 29th June, 2013 would,
however, provide the necessary legal fig leaf for the President
to do that which he wanted anyway. The President could have approached
the Courts with some confidence on the matter. The Courts had allowed
his breach of the Electoral
Act and the Constitution in failing to call by-elections, which
had been due since 2009, to pass without repercussion despite numerous
court applications in this regard. If the Courts had failed to compel
the President to convene by-elections as and when they were legally
due, they might well compel elections to be held when they were
not. In granting frequent postponements sought by the President
to an order to hold by-elections, the Court had already displayed
a willingness to accommodate the President's electoral timetable.
It would not
have been politically expedient for the President to have brought
the application before the Constitutional Court himself. Fortuitously,
we would have to believe, Mr. Mawarire, a member of an obscure non-governmental
organisation, the Centre for Election Democracy in Southern Africa,
stepped up to the plate and obligingly brought the application "against"
the President. The NGO was believed by some to be a front for Zimbabwe's
intelligence agency. Unsurprisingly, the President's "opposing"
paper, rather than disputing the Applicant's case, as is usual,
wholeheartedly agreed with his argument, though it did not - it
seems, having agreed with the Applicant's interpretation of the
law, offer any reasons why he had then failed to comply with it.
The issue before
the nine-member bench of the Constitutional Court was to determine
the chronological parameters mandated by the constitution for the
holding of a general election following the dissolution of Parliament.
The dissolution of parliament can take place in one of two ways,
either pursuant to a proclamation to this effect by the President,
or through the passing of time when the five-year term of Parliament
ends. The determination of the issue revolved around the interpretation
of subsection 58(1) of the old constitution,
as read with subsections 63(4) and 63(7), which are still to apply
until the new constitution becomes fully operational.
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