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Crisis Report Issue 197
Crisis in Zimbabwe Coalition
July 05, 2013

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‘President Mugabe not off the hook’, Civil society says

The Constitutional Court of Zimbabwe in Harare on Thursday, July 4, unanimously maintained previous ruling in Jealous Mbizvo Mawarire vs. The President and others that the harmonized elections should be held on the 31st of July, 2013. Crisis in Zimbabwe Coalition (CiZC) says defaulters of the Global Political Agreement (GPA) are not yet off the hook.

The nine judges sitting as a constitutional court dismissed the urgent cases for postponement to implement pending reforms brought by five applicants. Reasons of the constitutional court ruling are yet to be given and there was no mention of pending reforms by the Con-court bench.

Canvassed by the Crisis Report on whether the ruling by the Constitutional Court meant that President Robert Mugabe was off the hook in terms of the political reforms recommended at the SADC Summit in Maputo, CiZC Regional Advocacy and Information coordinator, Joy Mabenge, said:

“Certainly, not because the message from SADC was quite clear that we must implement reforms before the elections, so if they go off the hook and we go for elections it is a disputed election and it means we are in an election mood for quite some time. In fact, this is not going to logically conclude the Global Political Agreement. So President Mugabe is not off the hook yet, in fact what the Supreme Court has done flies in the face of the mediation process that has been done by SADC and by extension by the AU. I don’t think it is Zimbabwe’s intention to isolate itself from the AU and SADC. In fact, it will be suicidal for anyone to attempt to do that,” said Mabenge.

Delivering the anticipated ruling before a full house at the Supreme Court around 5pm on Thursday, July 4, Chief Justice Godfrey Chidyausiku said:

“The applications should be, and are hereby dismissed without order of costs. For the avoidance of doubt elections will proceed on the 31st of July 2013 in terms of the proclamation by the President of Zimbabwe in compliance with the order issued by this court as CCZ1/2013. Reasons are to follow.”

The court on May 31 ruled in favour of Jealous Mawarire of the low profile, little known and inactive Centre for Elections and Democracy in Southern Africa (CEDSA), “obligating” President Robert Mugabe to proclaim date for elections to be held by July 31.

After President Mugabe invoked the Presidential Powers (Temporary Measures) Act to amend the Electoral Act and proclaim elections for July 31 as gazetted through Statutory Instruments 85 of 2013 and 86 of 2013, the court was approached by five applicants who called for nullification of the date on reasons that it brewed a sham election, leading to joint hearing on Thursday, July 4.

Justice and Legal Affairs Minister Patrick Chinamasa in his affidavit said he agreed with the date though he had been “whipped” by SADC, following a Summit of the bloc in the coastal Mozambican capital Maputo on June 15 which urged the parties to the Global Political Agreement (GPA) as government, to approach the court for an extension to implement reforms necessary for credible, free and fair elections.

SADC had prior to the Summit been pressured by a coalition of five main opposition parties, MDC-T, MDC-N, Mavambo/Khusile/Dawn, ZAPU and Zanu-Ndonga, and Zimbabwe and international civil society organizations who wrote petitions urging the bloc to guarantee “free, fair and credible elections in Zimbabwe”.

Civil Society organizations maintained soon after the Summit and at the Launch of the “Feya Feya” Campaign on Thursday, June 27 in Bulawayo their standpoint of principle, saying the issue was not about the date of the election but the pending critical reforms.

State media hate speech partisan reporting and security sector bias towards Zanu-PF were some of the concerns raised by civil society organizations which they said were against the Constitution, SADC Principles and guidelines Governing Democratic Elections and African Charter on democracy, elections and governance.

Prime Minister Morgan Tsvangirai and Minister of Industry and Commerce, Prof. Welshman Ncube, represented by Advocate Lewis Uriri and Advocate Thabani Mpofu respectively tried to persuade the Constitutional Court that the move to amend the Electoral Act, and proclamation of elections by President Mugabe without consulting other principals as provided for by the GPA which stipulates that executive powers are shared was unconstitutional.

Two citizens Nixon Nyikadzino and Maria Phiri who had also filed for extension complained that the July 31 date infringed on their basic rights.

However, the court upheld its earlier ruling, meaning the July date stands.

Chief Justice Chidyausiku said the reasons for the ruling will follow, keeping the applicants guessing. The bench also re-fused to hear Prime Minister Tsvangirai’s lawyer Uriri’s argument that the Presidential Powers (Temporary Measures) Act was unconstitutional.

Neither did the court pronounce whether the laws made by decree were not illegal.

Chief Justice Chidyausiku maintained elections should have been held by June 29, calling that omission “the mother of all illegalities”.

In persuading the court to uphold the Presidential decree of June 13, Mawarire’s lawyer said the court could not pay attention to a “club of politicians” in reference to SADC, purporting that it could open floodgates to decisions of a similar nature in the future from the AU, or UN.

Uriri said there was nothing sinister about the PM seeking sup-port from SADC as his authority and that of the President were in terms of an agreement brokered and guaranteed by SADC, which Zimbabwe was supposed to honour as a party to the SADC treaty.

Meanwhile, the Attorney General and Zimbabwe Elections Commission (ZEC) who had been cited as the fifth and sixth respondents promised to abide by the ruling of the constitutional court, claiming they were neutral.

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