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New bottles: old wine - An analysis of the Constitutional Court judgement on election dates
Research and Advocacy Unit
June 04, 2013

View this article on the RAU blog here

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? It is clear that Parliament was required to bring the new constitution into being, and hence Parliament could not have been dissolved before the Constitutional Bill became law. However, did this in any way mean that the President could not have proclaimed the dissolution of Parliament at a future date that allowed ample time for Constitutional Bill to be passed.

There were also several other complications related to the proclamation of elections:

• The MDC formations and SADC all insisted that various reforms had to take place before elections
• 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

It would not have been politically expedient for the President to have brought the application before the Constitutional Court himself. However, a Mr. Mawarire stepped up to the plate and brought the application “against” the President. Unsurprisingly, the President’s “opposing” paper, rather than disputing the Applicant’s case, as is usual, wholeheartedly agreed with his argument, though 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 Supreme Court, sitting as 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 following a proclamation by the President, or Through the effluxion 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.

Section 58(1) provides as follows:

A general election and elections for members of the governing bodies of local authorities shall be held on such day or days within a period not exceeding four months after the issue of a proclamation dissolving Parliament under section 63(7) or, as the case may be, the dissolution of Parliament under section 63(4) as the President may, by proclamation in the Gazette, fix.

The judges of the new Constitutional Court seized with the matter were not fresh judicial appointees. Chief Justice Chidyausiku wrote the judgment for the majority. In the judgment he construed section 58(1) so that it’s meaning became ambiguous. This was done by violating some very basic rules of grammar in the following ways:

He inserted colons into the section (where none existed in the original) ostensibly to highlight what he claimed was the ambiguous nature of the provision, but in factto creating an ambiguity that did not exist before.

The insertion of punctuation can dramatically change the meaning of a sentence, for example:

• ‘While the mother was cooking the baby her brother and the dog were sleeping.’
• When punctuated, the sentence is easier to read.
• ‘While the mother was cooking, the baby, her brother and the dog were sleeping.’
• But leave out a comma and the text becomes more sinister
• ‘While the mother was cooking the baby, her brother and the dog were sleeping.’

By inserting a colon after “on” in section 58(1), Chief Justice Chidyausiku altered the meaning of the provision to read:

58(1) A general election and elections for members of the governing bodies of local authorities shall be held on:

i) such day or days within a period not exceeding four months after the issue of a proclamation dissolving Parliament under section 63(7) or,

ii) as the case may be, the dissolution of Parliament under section 63(4) as the President may, by proclamation in the Gazette, fix.

By the insertion of the colons, Justice Chiyausiku creates a new meaning for section 58(1), which gives the Applicant the desired result. That meaning is that the President must have set the election date within a period of four months before the dissolution of Parliament and that an election should be held upon the dissolution of Parliament.

This is not what the law (without the colons) says. The law says an election shall be held within a period of four months AFTER the President issues the proclamation Parliament dissolving parliament or within a period of four months AFTER Parliament dissolves automatically at the end of its five year term. That five year term ends on 29 June and the law allows the President to continue in office, in this event, after Parliament has been dissolved, but with the requirement that he to set an election date within four months from the time of such dissolution.

Further, the Chief Justice in coming to his conclusion made the assertion that reading the ‘after’ to mean precisely that i.e. ‘after’ would create a ‘mind boggling’ situation in which the country existed without Parliament. This is not a sound argument. The Chief Justice knows very well that:

• In the past the date for an election has always been announced AFTER, and not BEFORE, dissolution of Parliament which has meant that the President previously has continued to be in office without a Parliament The Constitution, in fact, specifically allows for Parliament to be ‘prorogued’ (delayed) for periods of as much as 180 days, [1] and the power to prorogue Parliament for such an extended period lies with the President under the current constitution.
• The executive continued to function without legislative oversight for five months between the dissolution of Parliament for the March 2008 election and the start of the seventh Parliament in 2008 without anyone’s mind being boggled or any ruling of absurdity being made.

Even if this judgment is correct, the Chief Justice did not avert to some very important facts that may make it impossible for the President to comply with the 31 July deadline:

• Provisions of the new constitution, which are effective from the date of publication, stipulate that there must be at least 44 days between the proclamation of the election dates and the Election Day itself.
• The new constitution also provides that the Electoral Act cannot be changed once the election dates have been announced.
• The Electoral Act must be amended to bring it into line with the new constitution, especially in regard to the introduction of a system of proportional representation.
• The President cannot proclaim the election dates until the amendments to the Electoral Act have been finalised.
• There is no guarantee that the amendments to the Electoral Act will be agreed upon and finalised at least 44 days before the 31st July, 2013. This means that the President may then either have to violate the constitutional requirement that 44 days elapse between the electoral proclamation and the election itself, or fail to meet the 31st July, 2013 deadline.

This article was adopted from an opinion piece written by Derek Matyszak.

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