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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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