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Hot Seat: Madhuku, Coltart & Matyszak analyse constitutional crisis
Violet Gonda, SW Radio Africa
June 15, 2013

Zimbabwe faces new political and legal uncertainty after President Robert Mugabe unilaterally proclaimed 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?

Violet 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.

David 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.

Gonda: The Constitutional Court was only set up last month so are all these 31 cases election related?

Coltart: 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.

Gonda: 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.

Lovemore 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 country.

Unfortunately, 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.

Regarding political 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.

Gonda: 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?

Derek 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?

Coltart: 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.

Gonda: 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 Electoral Act?

Coltart: 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 constitution.

Gonda: Dr Madhuku your response to this?

Madhuku: Well 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.

Gonda: 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?

Matyszak: 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.

Gonda: Mr Coltart?

Coltart: There 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.

I’ve spoken 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.

The problem 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 its own.

Nations are 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 country.

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 of parliament.

Madhuku: Violet 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… (interrupted)

Coltart: Violet can I come in here …

Madhuku: …why 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?

Coltart: Yes 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.

Gonda: Derek 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?

Matyszak: Yes 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.

Minister Coltart 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.

The correct 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.

Gonda: What 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?

Matyszak: Well 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.

Gonda: 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?

Coltart: Well 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 of legitimacy?

Matyszak: Well 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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