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Zimbabwe's Elections 2013 - Index of Articles
Expert
rips into Chidyausiku judgment
NewsDay
June 06, 2013
http://www.newsday.co.zw/2013/06/06/expert-rips-into-chidyausiku-judgment/
A Constitutional
law expert, Derek Matyszak, has alleged Chief Justice Godfrey Chidyausiku
violated “basic rules of grammar” to make a crucial
part in the Constitution
on dates for elections “ambiguous”.
Matyszak made
the observations in a paper on the landmark decision
by the Constitutional Court on an application by Jealousy Mawarire.
The applicant
claimed that President Robert Mugabe was obliged to set the dates
for Zimbabwe’s
next general election no later than June 29, 2013, when Parliament
reaches the end of its prescribed five-year term.
Below is Matyszak’s
argument.
“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. So the first step in
Justice Chidyausiku’s judgement was to construe section 58(1)
so that its meaning became ambiguous. This was done by violating
some very basic rules of grammar and in the following way.
Thus the judgement:
READING
‘A’
58(1) 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.”
READING
‘B’
58(1) 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:
1. 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.
There could
be any number of other variations the section 58(1) text can be
broken into, but the two scenarios above will suffice for the purpose
of this case. Both Reading ‘A’ and Reading ‘B’
answer to the question when elections are to be held, but with one
putting the emphasis on the preposition ‘on’ and the
other on ‘after’. Both interpretations are compelling.
Adopting one interpretation or the other results in starkly different
outcomes. In one case, elections must be held within the life of
Parliament. In the other case, elections may be held up to four
months after the dissolution of Parliament.
A court faced
with competing possible interpretations of a constitutional provision
must call into aid principles or canons of construction.
Justice Chidyausiku
inserts colons into the section (where none exist in the original)
ostensibly to clarify the ambiguity, but in practice creates an
ambiguity where none existed 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), Chidyausiku CJ
alters 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.
This has the
effect of removing the application of the phrase ‘within a
period not exceeding four months after’ from the portion of
the section referring to dissolution under 63(4) which is the provision
providing for the automatic dissolution of Parliament. The sense
is then that the election must be held on the automatic dissolution
of Parliament, that is, June 29, 2013.
However, the
Legislature did not place any colon where the Chief Justice would
like to read one. The sentence must thus be read without it and
in accordance with the usual rules of grammar.
Hence a grammatical
reading of the sentence requires that the phrase ‘within a
period not exceeding four months after’ applies to that portion
of the section relating to automatic dissolution. The sense is thus
that an election need only be held within a period not exceeding
four months after the automatic dissolution on June 29, 2013, that
is, by October 29, 2013.
As with the
example of the mother cooking her baby given above, Justice Chiyausiku
thus creates a new meaning for section 58(1) and one which accords
with the Applicant’s (and Zanu-PF’s) desire.
The effect in
sum is that the sentence is read to mean that the President must
set the election date within a period of four months before the
dissolution of Parliament. Yet the provision quite clearly uses
the word ‘after’ and we must assume deliberately so.
Furthermore,
this meaning also implies that where the election is pursuant to
the automatic dissolution of Parliament, the election must be held
on such dissolution and not within a period of four months thereafter.
The date then
is not fixed by the President, a requirement to which the relevant
sections repeatedly make reference, but is fixed by the term limit
of Parliament.
And there is
no point in the President issuing a proclamation concerning a date
for an election which is already known and determined.”
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