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Before and after: old wine in new bottles - The constitutional court ruling on the election date
Derek Matyszak, Research and Advocacy Unit
June 03, 2013

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On Friday 31st May, 2013 the newly established Constitutional Court issued its first judgment, 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.

However, the 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.

A Constitutional 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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