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Seat: Madhuku, Coltart & Matyszak analyse constitutional crisis
Violet Gonda, SW Radio Africa
June 15, 2013
new political and legal uncertainty after President Robert Mugabe
July 31st as the election date. Mugabe used a presidential decree
to fast track electoral laws to by-pass parliament, claiming he
had to do this to comply with the Constitutional Court order
to hold elections by this time. Prime Minister Morgan Tsvangirai
has reacted angrily and intends to challenge the decision through
the courts. On the Hot Seat programme, Violet Gonda speaks to prominent
constitutional lawyers Dr. Lovemore Madhuku, Derek Matyszak and
David Coltart, who is also the Minister of Education, on the unfolding
constitutional crisis in Zimbabwe. Why does Madhuku say the MDC
formations must just ‘swallow their emotions’ and accept
that elections should be held next month? And why do the other two
insist it is impossible to finalise electoral processes within the
remaining time frame?
Gonda: My guests on the Hot Seat programme
are constitutional lawyers Dr. Lovemore Madhuku, Derek Matyszak
and David Coltart, giving us their opinions on the legal and political
challenges facing the coalition government regarding the holding
of elections. Please note the interview was recorded the night before
President Robert Mugabe unilaterally
set July 31st as the election date but what we had to discuss
was still relevant. Zimbabwe has seen an unprecedented number of
court challenges filed before the newly constituted Constitutional
Court, to deal with the forthcoming elections. So I started by asking
Mr. Coltart to give us the implication of these court challenges.
Coltart: Well it all started of course with case one, the
first case that the Constitutional Court handed down on the 31st
of May which has given Zimbabwe this date of the 31st of July; I’m
not aware of all the cases which have been filed but I was advised
yesterday that since that case was filed a further 31 cases have
been filed. I only know the details of one of those cases but they
may be the solution to this constitutional crisis we find ourselves
in because the Constitutional Court has ruled, that it’s the
superior court, there’s no appeal from the Constitutional
Court and we are stuck with that judgement until it is changed and
I hope that through one of these cases which are being brought to
the Constitutional Court, as I say, we’ll get a resolution
to this crisis.
The Constitutional Court was only set up last month so are all these
31 cases election related?
I have no idea what they are to do with. I only know about one of
the cases brought by a Bulawayo-based woman who was an alien prior
to the new constitution, is entitled to citizenship and has brought
this case pointing out that there’s this 60 day period that
has to be complied with and that if the country sticks with the
31st of July date, her rights will be violated, her rights in terms
of the constitution will be violated. But I really don’t know
what the content of the other cases is.
Dr Madhuku what do you make of all these cases that are before the
Constitutional Court and I understand that there’s also an
activist Mr. Nyikadzino from the Crisis Coalition who has also filed
an urgent application regarding the elections.
Madhuku: My response is based on a distinction I would
want to make between the legal position and what I may call political
convenience or political preference. I think the legal position
as everyone knows very clearly, the Constitutional Court made a
decision for now that is the decision, that is the law, and guiding
us, we are bound by that decision, there has been no debate about
that. And then the second thing legally is that all those people
that are going to the Constitutional Court are perfectly entitled
in law to approach the Constitutional Court when they feel that
their rights have been infringed, they have the right to do that.
But until a decision is made to the contrary, the decision that
was made on 31 May is still the decision that is binding on the
unlike when you make an appeal from a lower court to a higher court
you have a rule that says the decision that you are appealing against
is suspended but with these the applications would not count for
anything at law unless the applicants seek that pending the hearing
of a matter, some remedy is given to them, possibly restraining
or varying the order.
So for now those
applications are encouraging; that’s a constitutional democracy
at work, people must go to the courts.
convenience whether it is in the light of so many applications being
made to the Constitutional Court, it would be wise for our political
leaders, in this case the president and his team, to continue to
abide by the Constitutional Court’s decision. I think that
is a matter of opinion. I think many people making those comments
would be doing it purely from their own inner self; what is their
political perception, what they think is the right thing to do.
I feel that elections must now take place, they are long overdue,
and so anything that will lead to an election, for me out of self-interest,
I would go for an election.
We’ll come back to that issue but let me just get Mr Matyszak’s
views on this. You know some cynics are saying that there is now
a risk of testing the constitution to the extent that it will break
with all these applications that have been put before the Constitutional
Court. Do you agree with this or this is constitutional democracy
at work as Dr Lovemore Madhuku has said?
Matyszak: Obviously it’s a healthy
sign if the Constitutional Court is being asked to adjudicate on
issues pertaining to human rights and the elections but I think
this plethora of actions to the Constitutional Court is an inevitable
result of the ill-conceived order that the Constitutional Court
gave requiring elections to be held by 31st of July because there
is now the dilemma that the president cannot comply with both the
Constitutional Court order and with the constitution and electoral
legislation. So inevitably when the Constitutional Court order gives
rise to breaches of the constitution and to breaches of the Electoral
Act then inevitably there are going to be court applications
around that. So it’s something that the Constitutional Court
has brought upon itself by not thinking through the order it gave
on the 31st of May.
Gonda: Mr. Coltart Prime Minister Tsvangirai wanted
the president to approach the Constitutional Court and ask for a
delay, do you agree with this?
Well I don’t think it may be necessary for the president or
any political leader to go to the Constitutional Court because there
are already these cases, at least one of which I know about, which
are going to tackle the very issues that give rise to our concern.
There’s no doubt that we have to go back to the Constitutional
Court, I agree with Dr Madhuku, the Constitutional Court has ruled,
we are bound by that ruling until that ruling is varied, we are
stuck in this constitutional crisis. But there’s no doubt
that it has to be changed because there cannot be compliance with
that ruling and compliance with the constitution. Because of the
delay in the start of the voter registration exercise, which only
began on Monday 10 June.
There is an
absolute minimum period of 60 days that has to be gone through and
I stress minimum, it can be argued that it’s longer than that,
it can be argued that it’s a minimum period of 74 days that
has to be complied with in terms of the new constitution before
an election can be held and so somebody has to go to court. If we
don’t get a variation to the order, we will face a really
terrible constitutional crisis; we have just enacted the new constitution
which allows for this Court and our first act is going to be to
either violate the constitution or to violate a ruling of our Constitutional
Court and that’s not a very good start.
I understand that cabinet met on Tuesday and actually discussed
the amendments to the Electoral Act so can you tell us some of the
major changes that were made during this debate and also what does
the law actually say about the timing of elections in terms of the
There have been a variety of changes to the electoral law agreed
to and they are all very positive changes. I think that they will
promote democracy, I’m very happy with the provisions that
will govern for example the proportional representation provisions
in the new constitution. There are other provisions for example
the amendment to Section 57 which many parties were worried about
that; that’s the clause that obliged voters to show their
ballots to a returning officer prior to putting it in the ballot
box and many felt that intimidated voters. That has now gone and
there are a variety of other provisions.
There was a
broad consensus in cabinet which surprised me and these amendments
are now going to be integrated into a final draft and I think that
that will probably be presented to parliament next week and because
of the consensus achieved in cabinet I have no doubt that it will
pass through parliament without any problem.
So that was
the one thing we looked at the Electoral Act, the other thing we
looked at was the process of voter registration. I obviously can’t
go into too much detail, I’m bound by the Official
Secrets Act but suffice it to say that there was acknowledgement
that the voter registration exercise in terms of Section 6 of the
Sixth Schedule only began on the 10th of June, this past Monday.
There have been stories in the Herald that this started somehow
automatically with the passage of the new constitution even though
there was nothing happening on the ground, well that’s been
acknowledged and that in itself means that the elections simply
cannot be held on the 31st of July and be in compliance with the
constitution so my sense is that the election is not going to be
on the 31st of July but clearly what we need prior to that decision
being taken is an order from the Constitutional Court that the elections
cannot be held on the 31st of July and still be compliant with the
Dr Madhuku your response to this?
I need to say that any failure to comply with that Constitutional
Court judgement would be very unfortunate for the country and also
a very bad precedent. I think what Minister Coltart is saying is
correct that there would be two problems – the Constitutional
Court ruling and then the constitution but as far as I see it, if
we are faced with those two – either to break the ruling of
the Constitutional Court or to break the constitution, if we were
to be forced to do that then I think we should break the constitution
because the provisions of the constitution that are being broken
relate mainly to the registration process which the executive can
easily speed up. I think the whole purpose of a registration process
ensures that every person eligible to vote is registered. The executive
must simply provide the resources required to register everyone.
Currently what they are doing they have teams, initially they announced
that they were going to have a team per ward but when the programme
was rolled out we saw that that was teams per district. So even
if we are moving around there are so many places where there is
nothing taking place; even when you say 30 days, it’s not
30 days in my place where I am in my community, for 30 days I am
entitled to register and I’ll be able to register. It won’t
be 30 days, it’s 30 days across the country. In my area for
example they will be there for just two days. So any failure to
comply with the Constitutional Court must not be blamed on the Constitutional
Court. I think it must be blame on the executive. Why is the executive
not providing sufficient resources to ensure that we comply with
the rest of the things?
There are two
types of people currently criticizing the Constitutional Court.
There’s one type of person who says look the Constitutional
Court did not think through the issues, it’s simply not doing
its work I think Derek’s approached seems to be in that group
that says well it was an ill-conceived decision therefore you don’t
even need to comply with it. But the other groups says the Constitutional
Court in its wisdom has made this decision but that decision is
not practicable, let’s find ways of still retaining the country
to some legal framework which is what I seem to be hearing from
Minister Coltart who is appreciating that.
I think we should
be clear in this debate in this country are we saying we don’t
care about unreasonable decisions from our courts or we say even
where we don’t find that the decision is unreasonable let’s
be seen to be respecting the very concept that courts are there
to make decisions and that when those decisions are made they should
not be lightly ignored.
But the trend
I’m seeing among our politicians is quite disturbing. Some
of them are really simply just trashing the Constitutional Court
but what are we going to be after this decision? There will be other
decisions, other decisions, it won’t be right.
I also want
to raise another problem which I hope my two colleagues will have
to attend to as well if you criticize the Constitutional Court at
the very core and say that this is an unreasonable decision but
you still go back to the same Court and you ask that same Court
now to be reasonable, you may be sending a message to this Court
that I’ll only respect you when you are reasonable within
my own framework or in terms of my own framework and that will be
problematic. So just to make my point clear, I believe that we can
still comply with the 31 July deadline if our executive simply starts
doing its work which is to ensure that they have to do everything
possible to comply with that judgement.
Mr Matyszak what do you make of that especially on the point that
Dr Madhuku raised that if he had to choose he would rather break
the constitution than block the elections? As a constitutional lawyer
do you agree with this?
No, no not at all, there’s absolutely no reason for anybody
to behave illegally. We saw repeatedly over the by-elections saga,
the president approaching the court to say I need more time, the
order you’ve given me is not practicable, I can’t implement
it, I need more time so why can the president not do the same thing
with this particular court order which is obviously ill-conceived?
It’s impossible for the 30-day registration period, which
is a requirement of the constitution, to be implemented and the
Court order to be implemented and I don’t know why Dr Madhuku
can’t see that and keeps saying that it’s possible for
registration to take place. That 30 days is a constitutional requirement
and it must be complied with.
The Court order,
nobody is disrespecting the Court and that is why the Court must
be approached to say I’m terribly sorry but I can’t
comply with this because I’ll break the constitution if I
do so, please could you extend the time period. That’s not
disrespecting the Court, that’s respecting the Court. Nobody
is suggesting that the Court order should simply be ignored.
But I would
also like to take up the points about the amendments to the Electoral
Law, which were raised by Minister Coltart. One of the amendments
that was not mentioned by Minister Chinamasa as reported in the
Herald and was not mentioned in Minister Coltart’s reply to
you even though you specifically raised the point is the amendments
relating to the timing of the elections. Now just last year the
political parties agreed to an amendment to the Electoral Act to
extend the timing of elections so that from the proclamation issued
by the president, there had to be a 63 day period before the actual
elections were held and this 63 days was inserted precisely at the
request of ZEC, the Zimbabwe Electoral Commission, because they
said they needed that period in order to get their logistics in
place for an election. So what I would like the Minister to specifically
reply is – what time period was agreed between the parties
because if it is less than the period simply that was agreed only
last year, it seems like that time period would have been trimmed
down specifically to deal with the president’s dilemma. I’d
quite like to hear from the Minister on that point Violet.
are quite a few issues to respond Violet, if I could just be as
briefly as possible. First of all, I don’t believe that we’ve
got any choice, to come back to Dr Madhuku’s comment. We have
to comply with the Constitutional Court and we have to comply with
the constitution. Both of those are non-negotiable, it’s not
a matter of choice and if we can’t comply with the Constitutional
Court, then we are obliged to go back to the Constitutional Court
to say so. And I think it’s very obvious that there can be
no compliance with the constitution. Dr Madhuku said in his remarks
that he felt that if sufficient resources were applied to this,
if there’s political will, that we could still fit it within
the time frame and hold an election before the 31st of July. With
respect to him I don’t agree with that. I think it’s
legally and constitutionally impossible to fit the election within
that time frame. It might have been possible on the 31st of May
had we immediately started voter registration then we might have
been able to fit it in but because of the need to educate those
conducting voter registration, that hasn’t been possible.
They would have had training courses and the clock only started
ticking on Monday, on the 10th of June.
And as I say,
there’s two periods of 30 days. The 30-day minimum period
that is required for voter registration and inspection. The voters’
roll can only be compiled once that process is over. So you cannot
have the nomination court until that process of voter registration
has taken place. The second requirement is that there has to be
a 30 day period in terms of the constitution, not the Electoral
Act, a minimum period of 30 days from the nomination court to the
date of the election. So that’s 60 days, it started on the
10th of June.
No matter how
much money, you could put billions of dollars to this process, you
can have all the political will in the world, you cannot fit that
within the time frame of the 31st of July and comply with the constitution.
So there’s no way round that.
But to come
to Derek’s point regarding the length of time specified in
the Electoral Amendment Act which was passed last year which is
this fairly extensive period that the Zimbabwe Electoral Commission
asked for, that has been reduced and is more in compliance with
the constitution. When I say in compliance, it is compliant with
the new constitutional provisions but it is shorter than those periods
that Derek mentioned. He suggested that that was done to enable
us to comply with the 31st of July date but that is not the case
because as I just said even if we cut it down to a period of 30
days between nomination court and the election, we can’t comply
with that 31st of July date.
to many and there are real concerns about whether an election can
be run efficiently within those minimum time frames and that’s
where the Zimbabwe Electoral Commission has a valid point in asking
for a longer time.
that we face now is that the economy of this country is suffering,
business is dead in the country, we desperately need an election
as soon as possible and unfortunately the country no longer has
the luxury to have that extended period going into well over I think,
over 60 days. In fact it’s more than that between proclamation
and the election and so we have to try and hold the election within
the minimum time frame possible.
Gonda: Dr Lovemore
Madhuku can you respond to what Mr Coltart has said regarding the
issue of the time limits where he says legally and constitutionally
it is impossible to fit in the elections by July 31st. So how would
you fit in everything in the period that is left?
Madhuku: I think
it’s not relevant what he is saying. He’s just expressing
his interpretation of the constitution and thinks that the 30 days
is something that we can’t move away from but we have a Constitutional
Court decision that says elections must be held by 31 July. That
decision was made by seven lawyers that would have an idea that
there was a new constitution and that they would have obviously
taken that into account. Whether that decision was not properly
done or not, it is a standing decision and that’s a law on
not run on the basis of legal opinions by lawyers, they are run
on the basis of what decisions have been made by either the executive
or by the courts. Here we have a court decision so I would think
that when a breach takes place like for example if the 30 day period
is then not complied with because there is some compliance with
the Constitutional Court, that would still be perfectly acceptable
as far as I see it. If for example the president were to say well
I’m still proclaiming 31 July, we have lost ten days of voter
registration in terms of provisions of the constitution but I have
to do this because I have to comply with that Court. He will have
to go to the same Court to ask the same Court to say look, here
has the president breached the constitution? I think that Court
will give us another ill-conceived decision that will say he has
not broken the constitution. If you go back to the Court there should
be no assumption that going back to the Courts you’ll get
a favourable decision. All those 35 or so applications that have
gone to the Court may easily be dismissed by the Constitutional
Court which will say look go by what we said in the last judgement.
What do we say? We have to comply, that is a better way to run a
Gonda: But Dr
Madhuku there are some people especially from the MDC formations
who have said the decision by the Court was political. Only two
of the nine-member panel of judges disagreed with the ruling, with
the Deputy Chief Justice Luke Malaba actually saying that in his
opinion the decision ordering the holding of the elections by July
31st defied logic. Justice Malaba also said the constitution actually
allows for elections to be held four months after the dissolution
I think we should be very clear that those arguments were arguments
that were presented to Court. When this matter was taken to Court
by one of the citizens, the arguments coming from various political
parties were quite the same arguments we are making now; it’s
impossible; we have a four month period; we have a new constitution
all those arguments were presented in Court. The Court was very
much aware of the various arguments being made and that raises…
can I come in here …
do we create Courts? If there are disputes you go to a court. There
is a dispute in this country about when to hold elections. That
dispute has been resolved by a Court, which I’ll admit may
be politically driven but unfortunately that is the Court, which
is there for now and we have to go by it. We are better off being
seen to be going by those institutions than raising arguments over
and over again. I would advise Minister Coltart and this group of
people in the executive to just swallow their emotions and then
accept that they have to go to an election – organize an election,
31 July we have an election and we are done.
Gonda: Mr Coltart
you wanted to say something before Derek Matyszak?
please if I may. I think the first point I need to make is that
I don’t have to swallow any emotions because in my entire
contribution to this evening and even prior to this, I hadn’t
actually criticized the judgement. I’ve simply said we need
to look at the effect of the judgement and the constitution. I stand
very firmly with Dr Madhuku on this point that the Constitutional
Court judgement has to be respected but also that the constitution
itself has to be respected. But I just want to come back to an aspect
of this Dr Madhuku has said that we are relying on legal opinions;
yes in one sense we are but these are not legal opinions on obscure
interpretations of legal provisions. We’re talking about days:
30 days is 30 days. That needs very little interpretation. Thirty
plus 30 is 60. There’s no way round that interpretation.
But one other
point I’d make is that in the judgement of the Chief Justice,
he never spoke about Section 6 of the Sixth Schedule. In other words
the 60-day, the 30-day voter registration process, it didn’t
come into his judgement, Justice Malaba referred to it. And so it’s
a major flaw in that judgement that they never looked at Section
6 of the Sixth schedule.
But to give
credit to the Chief Justice, there’s a very important clause
in his judgement in which he says that the Court has to consider
all the current exigencies in arriving at its judgement and it must
not make an order which forces the first respondent, namely the
president, to act in violation of other electoral provisions. So
the Chief Justice himself in his judgement was very aware of the
fact that any Constitutional Court judgement has to be in compliance
with the constitution and the Electoral law. So that’s why
I feel that we’ve got very strong grounds to go back to the
Constitutional Court to say we’re not attacking your previous
judgement, we don’t even have to go into that whole debate
regarding the four month period, we simply have to look at the time
provisions and to see the factual situation. And we know the factual
situation is that the voter registration process only began on the
10th of June, we look at the provisions of the constitution, there
is an absolute minimum period of 60 days and in terms of the Chief
Justice’s own statement in his judgement, the Court must be
asked to vary its judgement so that its order is brought into compliance
with the dictates of the constitution. That is the way out of this.
Matyszak can you give us your thoughts on this, especially on what
Mr Coltart’s last point that on the one hand Chief Justice
Godfrey Chidyausiku said elections must be held before July 31st
but on the other hand he said the president has to consider all
the current electoral provisions. Doesn’t that confuse matters?
I agree Violet. Dr Madhuku is quite correct that the Court order
has to be respected but Minister Coltart is also correct that the
constitution has to be respected. And the constitution doesn’t
only have to be respected by the president and the citizenry, it
also has to be respected by the Constitutional Court and if the
Constitutional Court starts giving orders which violate the constitution
and starts making what Dr Madhuku has regarded as law, which contradicts
the law which is passed by the legislature, we have a serious problem
with the separation of powers and the majority of judges in the
case that we are discussing specifically emphasise the importance
of the separation of powers. We cannot have the Constitutional Court
setting dates for an election, which are not provided for by the
legislature and as determined by parliament.
So as Minister
Coltart pointed out, these particular exigencies, which have arisen,
were not there when the majority gave their judgement. And we have
a second problem which has arisen that the president cannot announce
the election dates until the Electoral Amendment Act has been passed
and it doesn’t look like that is going to be passed until
after the 17th of June, which once again makes it impossible for
the July 31st deadline to be met.
keeps on referring to a period of 60 days; my calculation is 74
days. There’s the 30-day registration period, there’s
the 14 days thereafter for the nomination court to sit and then
there’s the 30 days after that for the elections to take place.
So those time periods make the 31st of July impossible.
step, as we constantly emphasise is there’s no need for any
law to be broken, there’s no need for the constitution to
be breached and there’s no need for the Court order to be
disrespected. The correct course of action is for the president
to approach the Court and to ask the Court for directions to indicate
that he has been put in an impossible position and to see what the
Court decides under the circumstances.
happens in a situation where the concerned parties are using the
same laws to defend their positions? Like one example is where the
president is saying that he has to abide by the Court ruling to
call for the July elections but on the other hand the prime minister
is saying the president is not allowed by law to unilaterally declare
the date of an election without consulting him. So what happens
in a situation like this?
I think with respect to the prime minister I think he’s got
this one wrong. If you read the Eighth Schedule to the old constitution,
and it’s a moot point whether that’s still in force,
but even the GPA from which the Eighth Schedule is drawn, simply
says that the president has to consult the prime minister on the
dissolution of parliament and that would mean dissolution by presidential
proclamation -so that would only apply if parliament is to be dissolved
before June 29th. If parliament is dissolved automatically on June
29th there’s no need for the prime minister to be consulted
because he is only consulted around the dissolution of parliament
and not the actual date of the election.
Dr. Madhuku the last question is to do with the special SADC Summit
on Zimbabwe in Maputo
on Saturday, what can SADC realistically do without going against
the laws of a sovereign country?
Madhuku: I think
SADC will continue to do what it has done which is just to encourage
the people of Zimbabwe to try and have free and fair elections.
I don’t think SADC will deal with issues to do with our constitution
and to do with the Constitutional Court. They are very much entitled
to just discuss and keep encouraging Zimbabweans. And I think in
the context of that, they might be encouraging either the president
or the other parties to do what my two colleagues are saying that
you will approach the Constitutional Court to seek a variation and
so forth. Those are the only things that can happen at SADC level.
Gonda: Mr Coltart
what options are there for SADC and what are you going to go to
Maputo to ask SADC to do?
I suspect after Tuesday’s cabinet meeting we’ll find
in Maputo that there’s going to be a much greater level of
consensus. Perhaps I’m being overly optimistic as I don’t
know what has happened in the Politburo meeting today, but certainly
from what I saw in cabinet there is a much broader consensus within
cabinet about the way forward. So I hope that we’ll see this
weekend, the emergence of that consensus, that we’ve got to
be compliant with the constitution and the only way that we can
do that is by seeking a variation of the order and then we resolve
this crisis, get the voter registration completed and then start
the electoral process.
Gonda: And Mr
Matyszak what influence does the international community have on
SADC given that it appears they are pushing for stability instead
I think that has always been SADC’s position as well as to
push for stability rather than legitimacy. I think SADC might, as
Minister Coltart said, lean upon Mugabe to try and extend this 31st
of July date; they’ve seen Mugabe extending dates for by-elections
until they became irrelevant so they might be a bit bewildered as
to why he can’t do the same thing around the 31st of July
date. But one of the things that I think will emerge around extending
the 31st of July date is that the implications of the Constitutional
Court ruling are that even if the 31st of July date is extended,
it must be extended as little as possible and the problem that then
poses for the politicians is that the extension will take you right
to the UNWTO Conference and I don’t know that the Constitutional
Court can feel that it can take such a conference into account because
that is a wholly political consideration and not a legal consideration.
So there’s something of a dilemma that has emerged for the
politicians from this Constitutional Court ruling.
Gonda: You were
listening to constitutional lawyers Derek Matyszak, Dr Lovemore
Madhuku and David Coltart on the programme Hot Seat. They were giving
us their opinions on the legal and political challenges facing the
coalition government regarding the holding of elections.
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