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3 cases with important political ramifications - Court Watch 14/2012
Veritas
July 29, 2012

This bulletin covers three court cases that have important political implications.

1. The By-Elections Case

This was an appeal by the President to the Supreme Court after he lost a case in the High Court over his failure to call by-elections to fill 3 vacancies in Parliament. The Supreme Court has ordered the President to call by-elections to fill these vacancies. [The decision sets a precedent for the other 23 Parliamentary vacancies needing by-elections.] This is a decision that will test the President’s willingness to abide by a court decision. If by-elections are held [there could be up to 26] they will test the political temperature for the forthcoming general election and provide a test run for the new Zimbabwe Electoral Commission.

2. Too many Ministers Case

This case was lost in the High Court, but an appeal has been made to the Supreme Court. It is a citizen’s complaint about a breach of Schedule 8 to the Constitution, which incorporates Article 20 of the GPA; this stipulates that the Inclusive Government should have 31 Ministers, but in fact 41 were sworn in. If the appeal were won it would mean a reduction and reshuffle of Ministerial posts.

3. The Provincial Governors Case

This is a complaint taken by the Prime Minister about the President’s unilateral appointment of Provincial Governors. A preliminary technical objection about taking the President to court had to be dealt with first. The objection was heard and rejected by the High Court. There has, however, has been a notification of intention to lodge an appeal at the Supreme Court against this decision.

1. Supreme Court Orders Three Parliamentary By-Elections:

Reasons for Judgment Not Provided

Background

In 2009 three MDC-M MPs were expelled from MDC-M for undermining the party’s authority. Forfeiture of their seats in the House of Assembly followed, creating three parliamentary vacancies. As with all other vacancies in this Parliament, the President failed to call by-elections although section 39 of the Electoral Act provides that the President “shall” gazette a notice ordering a new election to fill a constituency vacancy, and must do so within 14 days of being notified of the vacancy by Parliament.

Bulawayo High Court decision ordering by-elections

The three former MPs took the President to court. In October 2011 the High Court upheld their case and ordered the President to ensure that by elections for the three constituencies were held.

President’s appeal to the Supreme Court

The President appealed to the Supreme Court against this order, arguing that section 39 of the Electoral Act is a merely directory provision not legally obliging him to call by-elections, and also that in any case the Government does not have the money to finance by-elections to fill these vacancies and the many other Parliamentary and local council vacancies that have built up since March 2008.

Supreme Court orders President to call by-elections

On 12th July 2012 the Supreme Court unanimously dismissed the President’s appeal and ordered the President to gazette a notice “ordering new elections to fill the vacancies as soon as possible but no later than 30th August 2012.” This creates a precedent for the other 23 vacant constituency seats in Parliament.

Reasons for this decision were not furnished - It is not known when they will become available.

Until the reasons are available, one can only speculate on whether or not the court:

• agreed with the MPs’ arguments that the word “shall” in section 39 of the Electoral Act really does mean “must”, and
• was not prepared to accept as a legally valid excuse the Government’s claimed inability to fund a large number of by-elections.

2. The “Too Many Ministers” Case – Judgment Awaited

Background

In this case the Prime Minister and the President are both accused by civil society activists Moven Kufa and the Voice for Democracy Trust of breaching Article 20.1.6(5) of Schedule 8 to the Constitution. The complaint is that the numbers of Ministers appointed in February 2009 exceeded the maximum number allowed by the Article and that this rendered the excess appointments unconstitutional, null and void. [The Article says there “shall be” 31 Ministers, 15 nominated by ZANU PF, 13 by MDC –T and 3 by MDC M. But, 41 Ministers were appointed.] The applicants asked for an order unseating the last 10 Ministers sworn in, alternatively an order compelling the President to cut the numbers of Ministers down to 31.

High Court Dismissed the case in April 2011

Judgment Summary

Justice Chiweshe ruled that the Article’s wording was directory only, that the stipulated numbers had not been “outrageously” exceeded, that the inter-party proportions had been largely observed and that the “anomaly” in departing from the Article did not warrant the order sought. Moreover, to grant the order sought by the applicants “would destabilize the government of national unity and cause unnecessary confusion within the body politic and prejudice the public interest at large”, which he said would be inconsistent with the intention behind Schedule 8 to the Constitution. [Judgment available from veritas@mango.zw] The applicants noted an appeal.

Appeal heard in the Supreme Court

On 19th July the applicants’ appeal was heard in the Supreme Court, with the applicants pressing for a straightforward application of the plain meaning of the Article, i.e. that 31 means 31.

The court reserved judgment

3. Tsvangirai v Mugabe [Provincial Governors Case]

Continuing from the point reached in Court Watch 10/2012.

Background

In November 2010 Prime Minister Tsvangirai launched a High Court case seeking an order setting aside the President’s appointment earlier that year of ten ZANU-PF provincial governors. His complaint was that the President had not secured his agreement to these appointments, although he was required to do according to Schedule 8 to the Constitution, incorporating Article 20 of the GPA, which provides for key appointments to be made by the President in consultation with the Prime Minister

President’s technical objection

The President’s lawyer, Mr Hussein, objected to Mr Tsvangirai’s application on the grounds that Mr Tsvangirai had gone to court without first obtaining leave to do so from a High Court judge, arguing this was required by rule 18 of the High Court Rules.

Objection rejected

It was not until 11th June this year, that Judge-President Chiweshe, who was the High Court judge hearing arguments for and against the President’s technical objection, ruled the objection not valid and that the main case should go ahead in the High Court; and the date was set for the 10th July.

President asks for leave to appeal to Supreme Court

The President’s lawyer promptly filed an application for leave to appeal to the Supreme Court against this ruling. This resulted in the High Court hearing set down for 10th July being indefinitely postponed pending a decision on the appeal application. On 26th June Justice Chiweshe heard argument from sides on this application, and reserved his judgment.

Leave to appeal denied

On 24th July Justice Chiweshe dismissed the President’s application for leave to appeal. [Judgment available from veritas@mango.zw]. He said the proposed appeal had no prospect of succeeding, because the Supreme Court has already decided in a previous case that, notwithstanding Rule 18, the President can be sued in his official capacity without prior leave from a High Court judge. No date was set for the main case to proceed.

Note: Some reports, including one from the MDC-T Information Department, have wrongly described this as a “Supreme Court decision” – it was a High Court decision. The matter may in fact go the Supreme Court [see next paragraph].

Further Appeal Direct to Supreme Court

The Prime Minister’s lawyer, Selby Hwacha, has received a letter from the President’s lawyer stating his intention to apply direct to the Supreme Court for leave to appeal. [The law states that if a High Court judge refuses leave to appeal, a Supreme Court judge may nevertheless grant leave to appeal.] When the application is made, it will be dealt with either by the Chief Justice or by one of the other Supreme Court judges to whom it is allocated by the Chief Justice. It is only the preliminary technical objection that will be up for discussion. The validity of the provincial governors’ appointments will not be argued or decided.

Meanwhile, Justice Chiweshe cannot set a date for the hearing of Mr Tsvangirai’s main application in the High Court.

The real constitutional issue is still to be argued

The President’s determined efforts to put an end to this case with his technical objection have up to now caused long delays preventing Mr Tsvangirai from having his day in court over the real issue in the case: whether the President breached the Constitution when he unilaterally appointed the provincial governors, and, if so, what the courts can or will do about it. That, after all, is what this case is really about.

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