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cases with important political ramifications - Court Watch 14/2012
July 29, 2012
covers three court cases that have important political implications.
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.
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.
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.
Court Orders Three Parliamentary By-Elections:
for Judgment Not Provided
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
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.
appeal to the Supreme Court
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.
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.
this decision were not furnished - It is not known when they will
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”,
- was not
prepared to accept as a legally valid excuse the Government’s
claimed inability to fund a large number of by-elections.
“Too Many Ministers” Case – Judgment Awaited
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
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 email@example.com]
The applicants noted an appeal.
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
v Mugabe [Provincial Governors Case]
the point reached in Court
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
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.
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.
for leave to appeal to Supreme Court
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
Leave to appeal
On 24th July
Justice Chiweshe dismissed the President’s application for
leave to appeal. [Judgment available from firstname.lastname@example.org].
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].
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.
Chiweshe cannot set a date for the hearing of Mr Tsvangirai’s
main application in the High Court.
real constitutional issue is still to be argued
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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