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Update
on by-elections case: appeal to Supreme Court - Court Watch 19/2012
Veritas
October 14, 2012
Appeal
to Supreme Court in By-Election Case
Court
Case to Compel President to hold By-Elections
Reminder: The
ex-MPs for three constituencies in Matabeleland which fell vacant
in July 2009, when they were expelled by MDC-M, took the President
to court in August 2010 for failing to call by-elections. [There
is are constitutional and legal provisions that a by-election most
be called within 14 days after Parliament notifies the President
of a vacancy.] They won their case in the High Court in Bulawayo
on 13th October 2011. The President appealed to the Supreme Court
against this decision, but on 12th July 2012 the Supreme Court dismissed
his appeal and ordered him to call the by-elections by 30th August.
The reasons for this decision have still not been given. President
Mugabe, instead of complying, made a last-minute application to
the High Court for an extension of one month, and on 30th August
High Court Judge-President Chiweshe, sitting in Harare, granted
an extension of the deadline until 1st October. [More detail can
be found in Court Watch
14/2012 of 28th July.]
Court
Grants Second Extension of By-Elections Deadline to 31st March 2013
A few days before
the 1st October deadline, another application for an extension was
filed on behalf of the President, this time seeking an extension
until the end of March 2013. The argument presented in an affidavit
by the Minister of Justice was that calling for these three by-elections
would create a precedent for demanding by-elections for the other
23 Parliamentary and more than 160 local authority council vacancies
and Government lacked resources as it still had to hold the constitutional
Referendum. He also pointed out that it was the President’s
wish to hold the coming general elections in March 2013. [Comment:
an argument about lack of State resources should not affect the
justice of a case; there is also an illogicality in the argument
that if the general elections are to be held in March asking for
an extension to call by-elections by the end of March really means
they would not take place at all, which makes setting that date
for an extension meaningless.]
The lawyers
for the three would-be candidates opposed the President’s
application, raising objections on:
- preliminary
procedural grounds, mainly that Justice Chiweshe had no jurisdiction
to change a Supreme Court order
- the merits
of the President’s reasons for wanting the extension.
Sitting in chambers,
not open court, Justice Chiweshe heard legal argument from both
sides on 1st and 2nd October and later on 2nd October announced
his decision granting the President an extension to 31st March 2013,
as requested. He added that his written reasons for rejecting the
procedural objections and for granting the extension would follow
later. To date they have not been released [see below].
Effect
of 6-month extension
It is important
to note that Justice Chiweshe’s extension means that the voting
in the by-elections could be in June 2013. This is because he extension
actually gives the President until 31st March 2013 to call the by-elections
– which is not the same completing them by that date. Under
the Electoral Act
the President must call by-elections by gazetting a notice setting
dates for the sitting of the nomination court [not more than 21
days after the Gazette notice] and polling [not more than 50 days
after the nomination court sitting]. This means that if the President
waits until 31st March 2013 to call the by-elections by gazetting
the necessary notices, voting in the by-elections could be as late
as 10th June 2013 – de facto not at all in light of general
elections next year. [Reminder this case has been ongoing since
August 2009 – it would create a sad precedent if a constitutional
case can be delayed this long and then just fall away.]
Would-be
candidates want to appeal to Supreme Court
The candidates
wish to pursue their opposition to the extension by appealing to
the Supreme Court to get Justice Chiweshe’s latest decision
set aside. Their lawyers are working on an appeal which will focus
on the jurisdictional point – whether Justice Chiweshe, as
a High Court judge, had the power to modify a decision reached by
the Supreme Court. This was one of the preliminary objections unsuccessfully
raised before Justice Chiweshe in argument.
Lack
of Reasons for Judgment – A Difficulty for the Appellants
No reasons from
Justice Chiweshe - A member of the candidates’ legal team
has confirmed that, until Justice Chiweshe’s has handed down
his written reasons for last Tuesday’s decision, it will be
difficult for them to formulate the notice of appeal which the rules
of court require. A letter has accordingly been sent to the Registrar
of the High Court asking for Justice Chiweshe’s judgment to
be provided.
No Supreme Court
reasons either - The Supreme Court has also made life difficult
for all involved in this case – Justice Chiweshe, the lawyers,
their clients and other interested parties – by not providing
its reasons for its decision of 12th July against the President.
.
Not only is
the lack of reasons difficult for the lawyers et al, but it also
causes unfortunate public speculation as to how a Supreme Court
order for relatively prompt calling of by-elections came to be transformed
into a ruling that could turn out to mean the by-elections will
never be held. No-one should have to speculate on why a court has
reached its decision in any case, let alone one with political ramifications.
An inevitable result of speculation is a loss of the esteem and
respect with which all courts should be regarded and a tarnishing
of the reputation for impartiality to which an independent judiciary
should aspire.
Questions
in Mind of Public
Can
the Constitution be ignored?
There has naturally
been public interest in this case, which has both political and
constitutional ramifications, and comes at a time of a new constitution-making
exercise. There is recognition of the binding nature of a constitution
and the obligations it imposes on a country’s institutions
– not just on the executive and the legislature, but also
on the judiciary. Not only do the Constitution and the Electoral
Act lay down provisions for filling vacancies in Parliament, but
the Constitution also
spells out every citizen’s right to be represented in Parliament.
In July the Supreme Court’s order seemed to have confirmed
that the President must comply with the Constitution and the Electoral
Act. How can a single High Court judge then extend that deadline,
for all practical purposes indefinitely? Are the courts not meant
to be the guardians of the Constitution?
Is a
March general election date now legally inevitable?
Another public
concern is: has the country somehow been legally committed to a
March 2013 general election by the affidavit on behalf of the President
lodged in the application for the by-elections extension? The answer
is No. The President can only set a general election date by a proclamation
in the Government Gazette – and the Prime Minister’s
agreement would be needed for general elections in March [GPA, Article
20.1.3(q)]. In any event, the statement to the High Court said only
that it was the President’s “desire” that the
general elections be held in March.
The
separation of powers principle
In a critical
comment dated 5th October the Research
and Advocacy Unit characterise the excuse that by-elections
could not be held due to financial constraints as “simply
a delaying tactic already rejected by the Supreme Court”,
and also remind readers that it is the Electoral Act that insists
on the prompt holding of by-elections. RAU suggest that Justice
Chiweshe’s extension of the by-election deadline is a violation
of the separation of powers principle established by the constitution,
because:
- It is not
for the judiciary or the executive to decide that the will of
the legislature does not require compliance. It is for the legislature
to decide that the law is inappropriate and if so to amend the
relevant Act.
- It is not
for the courts or the President to decide which laws can be ignored
out of political expediency – that would be inconsistent
with the rule of law.
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