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New Constitutional Court's election date judgment - Court Watch 7/2013
Veritas
June 11, 2013

First Judgment of Constitutional Court

The Election Date Case

Background:

On 2nd May Jealousy Mawarire, Zimbabwean citizen, registered voter, and director of the Centre for Elections and Democracy in Southern Africa, filed an urgent court application in the Supreme Court seeking an order directing the President to proclaim elections to be held no later than 30th June. Claiming that his rights under section 18 of the then Constitution to the protection of the law, and to have public officials obey the law, had been breached by the failure to proclaim the elections, he cited the President, the Prime Minister, Deputy Prime Minister Mutambara, MDC leader Welshman Ncube and the Attorney-General as respondents. The Registrar advised Mr Mawarire that if he wanted his case to be heard urgently, he should file a separate urgent chamber application seeking leave for the urgent hearing of his court application. He did this successfully, and the court application was set down for hearing on 24th May.

By the time the case came before the court, the new Constitution had been gazetted, on 22nd May, with certain provisions, including rights corresponding to those in the old Constitution cited in the case. As the passing of time meant it was already impossible to hold elections by 30th June, Mr Mawarire submitted an amended request that if the election could not be before 30th June, it should be by 25th July.

Case Transferred from Supreme Court to New Constitution Court

The gazetting of the new Constitution meant the case would be heard by the new Constitutional Court, with the bench made up of Supreme Court judges doubling as judges of the Constitutional Court. [Note: The Sixth Schedule to the new Constitution, providing for a two-stage transition from the old to the new Constitution, says that constitutional cases pending before the Supreme Court must now be heard by the new nine-member Constitutional Court established by the new Constitution. The Schedule also provides that for the new Constitution’s first seven years the judges of the Supreme Court will double as the judges of the Constitutional Court. Hours before the new Constitution came into force, two new Supreme Court judges and two acting Supreme Court judges were appointed to enable nine judges to sit on the new court’s first cases over the next two days. ]

The court hearing: On 24th May nine judges of the Constitutional Court heard legal argument from the lawyers representing Mr Mawarire, the President, the Prime Minister and Professor Ncube. DPM Mutambara and the Attorney-General chose not to be represented.

All parties were agreed that Parliament would be automatically dissolved on 29th June, at the end of its five-year life-span. The disagreement was over when the elections for its successor could legally be held. Mr Mawarire’s lawyer argued that that the wording of the relevant provisions of the old Constitution, [sections 58(1) and 63(4), created an ambiguity which should be resolved in favour of a reading that the elections must be on or before 29th June, to avoid a situation in which there would be no Parliament in existence. The President’s lawyer agreed with Mr Mawarire. The lawyers for both the Prime Minister and Professor Ncube argued that there was no ambiguity, that the grammatical meaning of the constitutional provisions was clear and that the elections could lawfully be held after 29th June as long as they were held within the following 4 months, i.e. by 29th October. They based their argument on section 58(1) of the old Constitution: “A general election...shall be held on such day or days within a period not exceeding four months after...the dissolution of Parliament...as the President may, by proclamation in the Gazette, fix.” [Note: this provision has been the same since Independence. Section 158 of the new Constitution, stating that elections must be held before Parliament is automatically dissolved at the end of its five year lifespan, is not in force; paragraph 3(1)(e) of the new Constitution’s Sixth Schedule expressly excludes it – “except section 158” – from the list of provisions that came into operation on 22nd May.]

At the end of the hearing the court reserved judgment.

Judgment of 31st May

The court’s judgment was delivered in record time, on 31st May.

The majority judgment [7 judges]: The Chief Justice, with the concurrence of six other judges, said the constitutional provisions were ambiguous and should be read so as to avoid a temporary Parliamentary vacuum, which would be “an absurdity” so he agreed with Mr Mawarire and the President on this point. But he then had to take account of the fact that his decision meant the electoral process was already “derailed” because it was already too late to have an election by 29th June and at the same time comply with the timelines for elections laid down in the Electoral Act and the new Constitution – factors the Chief Justice referred to as the “exigencies of the situation”. So, expressing his “desire to issue an order that will help restore legality to the electoral process as quickly as possible”, the Chief Justice said he was inclined to adopt Mr Mawarire’s alternative date but to “add six days to compensate for the period between the hearing of this appeal and the handing down of this judgment”. And that was the basis for the Constitutional Court’s selection of 31st July as the election deadline and its order to the President: “to proclaim as soon as possible a date(s) for the holding of Presidential election, general election and elections for members of governing bodies of local authorities in terms of section 58(l) of the Constitution of Zimbabwe, which elections should take place by no later than 31 July 2013.” The judges who concurred with the Chief Justice were Supreme Court judges Ziyambi, Garwe, Gowora and Hlatshwayo, and acting Supreme Court judges Chiweshe and Guvava. The other two judges, Deputy Chief Justice Malaba and Justice Patel, dissented strongly; both of them would have dismissed the application.

The two dissenting judgments

Deputy Chief Justice Malaba first of all explained why in his view it was not for the court to get involved in determining for the President the way in which he should exercise his discretion to fix dates for elections. The court, he said, “cannot act as if it were the Executive”. He rejected the alleged ambiguity of the constitutional provisions and said section 58(1) [see above] clearly envisaged the possibility of a period without a Parliament, as did the Constitutions of some other countries. [Noteworthy is his comment that “whilst the applicant is concerned about the fate of Parliament, he does not seem to be interested in the need to comply with the requirements of the new Constitution designed to ensure that the electorate plays a meaningful role in the electoral process.”]

Justice Patel reached the same conclusion. He examined the structure of the provisions of the old Constitution in issue, sections 58 and 63, and concluded that “the wording used is unambiguous and does not admit of any other interpretation, nor does it entail any absurdity”. He too, said that the provisions of the old Constitution still in force clearly envisage having a hiatus without a Parliament.

Court’s decision binding: Although the majority judgment has been severely criticised by a number of distinguished constitutional lawyers, and in the two dissenting judgments, it must be accepted. There is no higher court to overrule that decision, meaning there can be no appeal. So it must be complied with to the extent that compliance is constitutionally, legally and practically possible.

Difficulties with Judgment

Bill Watch 19/2013 of 10th June lists some of the timing difficulties now faced by those who must attempt to comply with the judgment while at the same time complying with the relevant constitutional and legal provisions. The conclusion reached is that compliance may well be impossible unless other constitutional provisions are breached in the course of doing so. As well as the factor of timing, some of the other objections and difficulties that have been raised are outlined below:

Should election date be set by the judiciary?

Deputy Chief Justice Malaba’s objection to judges fixing election dates will strike many readers as well-founded. As he pointed out, the power to fix election dates within whatever limits are fixed by the Constitution or the Electoral Law is essentially one for the exercise of an executive discretion, taking into account “relevant factors relating to the proper conduct of the elections in the national interest.”

Should the Prime Minister have been consulted?

The President and the Prime Minister were at odds over something on which agreement was to be expected. The Chief Justice’s decision was clearly influenced by fact that the President’s lawyer said the President had no objection to the court’s order for elections to be held by 31st July. In effect, therefore, the court allowed the fixing of an election date without the Prime Minister’s consent, when Article 20 of the GPA, as enshrined in Schedule 8 to the old Constitution, clearly makes that consent necessary, by implication if not by express words.

ZEC an interested party: The Zimbabwe Electoral Commission [ZEC] is a major stakeholder in electoral matters. Section 157(4) of the new Constitution recognises this: “No amendments may be made to the Electoral Law, or to any subsidiary legislation made under that law, unless the Zimbabwe Electoral Commission has been consulted and any recommendations made by the Commission have been duly considered.” By analogy ZEC should have been consulted before the court set about fixing an election date.

Other interested parties left voiceless: The majority judgment, while referring to some of the legal “exigencies of the situation”, shows no sign of having considered other exigencies, such as the capacity of the Zimbabwe Electoral Commission to conduct an election complying with the court’s order, the ability of the Government to fund it, or the wishes of other registered voters who might have wanted the court to hear views very different from those of Mr Mawarire about how best to balance the exigencies of the situation created by the court’s interpretation of the constitutional provision on election timing. It is to be hoped that if there is a return to the court [see below] there will be an opportunity for other stakeholders and registered voters to make an input. So far the court has not heard from persons who may have very good reasons for arguing that the exigencies of the situation call for a substantial extension of the polling day deadline, in order to permit a credible election to be conducted.

Last-minute appointment of Supreme Court judges under old Constitution: MDC-T have criticised the appointment of two new Supreme Court judges under the old Constitution just hours before the new Constitution came into operation. They point out that once the new Constitution is fully in operation the procedure for appointing judges must be far more open and transparent, involving advertising the positions, calling for nominations, public interviews of applicants by the Judicial Service Commission [JSC], and appointments made by the President from the list submitted by the JSC. Under the old Constitution judicial appointments could be made by the President after merely consulting the JSC.

Is Compliance with the Judgment Constitutionally, Legally and Practically Possible.

What if it turns out that the judgment requires the impossible?

The President and all concerned will have to rely on the principle expressed in the Latin maxim: Lex non cogit ad impossibilia [the law does not require one to do the impossible]. Can an election realistically take place on or before the 31st July? It is one point of view that that elections cannot be said to have taken place until the results have been announced, in which case the answer is a resounding No. Even if this view is not taken, and the court’s order is taken to mean that the 31st July must be the polling day or last polling day, there are so many difficulties, both legal and otherwise, that the same conclusion is reached: No.

What Can be Done if Compliance is Impossible

• The court order enjoins the President to proclaim the elections “as soon as possible” and says the elections “should be” held no later than 31st July. This is language that gives guidance rather than imposing a peremptory command. And, as the Chief Justice said in his judgment, the content of his order and his selection of the date were arrived at having regard to the “exigencies of the situation.” If the exigencies of the situation were not satisfactorily or fully explained to or appreciated by the court or if, as may very well happen, the exigencies change the court can be asked for an extension.
• There is great merit in the suggestion by David Coltart, a constitutional lawyer as well as a politician and Minister, that the way out of the “constitutional quagmire” is to go to the Constitutional Court for a fresh court order enabling the country to avoid being in contravention of other electoral provisions and the Constitution itself. Such an application could be made by any concerned citizen who, to paraphrase the Chief Justice’s words in the Constitutional Court’s judgment, perceives in the present situation a looming infringement of his or her right to have the coming elections conducted in accordance with the principles stated in section 155 of the new Constitution.

[Note There is a recent precedent for extending an election deadline set by a court – in the successive judicial adjustments made, in response to the exigencies of the situation, to the July 2012 Supreme Court order for the holding of by-elections; those adjustments culminated in the complete waiver of compliance with the court’s order.]

Conclusion

It would be regrettable if the court’s order forces Zimbabwe into having the first election under its new Constitution falling short of the principles outlined in section 155 of the new Constitution, such as that all eligible citizens are registered as voters, all political parties have equal access to the public media, etc. “The State”, not just the Executive is enjoined by section 155 to ensure all these principles are honoured. ZEC must be given the opportunity to do its job thoroughly so that all people trust the outcome. The election timeframe should also take into account Zimbabwe’s obligations, as a member of SADC, to follow the SADC Guidelines for Elections.

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