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bottles: old wine - An analysis of the Constitutional Court judgement
on election dates
Research and Advocacy Unit
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On Friday 31st
May 2013 the newly established Constitutional Court issued its first
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
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
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;
a proclamation by the President, or Through the effluxion of time
when the five year term of Parliament ends.
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
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
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:
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.
of punctuation can dramatically change the meaning of a sentence,
the mother was cooking the baby her brother and the dog were sleeping.’
- When punctuated,
the sentence is easier to read.
the mother was cooking, the baby, her brother and the dog were
- But leave
out a comma and the text becomes more sinister
the mother was cooking the baby, her brother and the dog were
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.
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,  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:
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
- 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.
was adopted from an opinion
piece written by Derek Matyszak.
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