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Constitutional Court cases 9 am 26th June onwards – Court Watch 8/2013
Veritas
June 25, 2013

Constitutional Court Sittings 9am 26th June Onwards

Reminder: The Constitutional Court started work promptly under the provisions of the new Constitution which was published on 22nd May [see end of bulletin for details of these provisions and the new court’s judges]. Since then it has heard two cases:

• On 23rd May it heard a case on the rights of HIV-positive persons in police and prison custody to receive treatment. After hearing submissions from both the applicants and the respondents the bench reserved judgment, which has not yet been handed down.
• On 24th May it heard a case in which a registered voter, Mawarire, asked for a declaration by the court on the date of the forthcoming election. The court handed down its decision ordering he President to hold the next harmonised elections no later than the 31st July 2013. [See Court Watch 7/2013 for a note on the Election Date judgment].

Since then, many other cases have been filed with the court, more than thirty of them. Six have been set down for hearing from Wednesday 26th June. They are all related to the forthcoming elections.

The Prime Minister’s Application of Monday 24th June may affect order in which cases are heard

The latest application lodged yesterday by the Prime Minister for the setting aside of the Election Proclamation and the Presidential Powers Regulations amending the Electoral Act, has been followed up his lawyers today with an application for the Prime Minister’s case to be heard together with the application by Minister Chinamasa for a two-week extension of the election date. At the moment Minister Chinamasa’s case is listed as first to be heard on the court roll [see below for this weeks court roll]. But the application to hear these two cases together means that the timing of the cases on the court roll for tomorrow may well change.

This Week’s Court Roll

The first case will start at 9am Wednesday and the cases will be heard one after the other on Wednesday and if necessary Thursday and Friday. The order at the moment [although this may change – see above] is as follows:

1. Patrick Anthony Chinamasa (in his capacity as Minister of Justice and Legal Affairs) v Jealousy Mbizvo Mawarire & 4 Others

Mr Chinamasa asks for a 14-day extension of the 31st July deadline set by the Constitutional Court in its decision of 31st May. In the papers filed he explains he does so because this is what the SADC Summit said he should do, even though he sees no fault in the court’s original decision. Mr Mawarire, the successful applicant on 31st May is the first respondent and opposes the application. Of the other respondents, the Prime Minister has filed opposing papers, saying the SADC Summit mandated only an agreed joint GPA principals’ application. Professor Ncube has also filed opposing papers.

2. Mutumwa Dziva Mawere v Registrar-General and 3 Others

Mr Mawere, born in Zimbabwe but a South African citizen by registration, seeks a declaration that the new Constitution automatically makes him a Zimbabwean citizen by birth without his first having to go through a prior “restoration of citizenship” process and vetting by Immigration as insisted on by the Registrar-General.

3. Tavengwa Bukaibenyu v Chairperson, Zimbabwe Electoral Commission and 3 Others

Mr Bukaibenyu, who says he is be a registered voter in Mabvuku, but currently based in South Africa, wants the Constitutional Court to declare as unconstitutional sections of the Electoral Act that deny foreign-based Zimbabweans the vote. He wants an order allowing all Zimbabweans in the Diaspora to participate in the election by postal voting, as some diplomats and Government officials based in foreign countries are able to do.

4. Zimbabwe Development Party v Minister of Justice and Legal Affairs & 3 Others

This small party, denied financing under the current Political Parties Finance Act, challenges the constitutionality of the Act vis-à-vis the new Constitution, and is wants an order entitling the party to $1.5 million.

5. Nixon Nyikadzino v President of the Republic of Zimbabwe and 12 Others

Mr Nixon Nyikadzino in his capacity as a registered voter also wants an extension of the election date, complaining that elections cannot be held as early as 31st July without infringing his constitutional right to a free and fair election. He says that this date does not leave enough time to complete all the processes required for elections to be held by in a constitutional manner.

6. Maria Phiri v The President and 5 Others

Ms Phiri’s case highlights the plight of the persons, formerly wrongly classified as “aliens” but confirmed as citizens by the new Constitution. She too, seeks an extension of the election date to allow people in this category more time to complete the relevant formalities, which require them to first acquiring “citizen” ID cards and only after that to register as voters for the purposes of the coming election.

Overview of the Establishment of the Constitutional Court

The Sixth Schedule to the new Constitution deals with transitional arrangements. It lays down that certain provisions come into force as soon as the new Constitution is published in the Gazette [which happened on 22nd May] and the remainder when the person elected President in the next harmonised elections is sworn in as such. Among the handful of provisions coming into force on “publication day” by virtue of paragraph 3 of the Sixth Schedule is “Chapter 8, relating to the jurisdiction and powers of the Constitutional Court”. And, according to paragraph 18 of that Schedule, for the next seven years the judges of the Supreme Court will double as judges of the Constitutional Court – only after that will the entirely separate Constitutional Court envisaged by the new Constitution come into existence. The practical effect of all this is that for the first seven years of the new Constitution, constitutional cases will continue to be heard by Supreme Court judges, but by a bench of nine judges, rather than five which was the rule previously. These cases will include not only new cases but also all the pending constitutional cases lodged with the Supreme Court before the 22nd May in which that court had not yet heard argument from the parties.

Appointment of Two New Supreme Court Judges

On 22nd May, shortly before he signed the new Constitution, President Mugabe swore in two new Supreme Court judges, both of whom have served as High Court judges for several years, Justices Bharat Patel and Ben Hlatshwayo.

Why were new appointments necessary?

These appointments were prompted by the need to have enough Supreme Court judges to make up a bench of nine judges for Constitutional Court purposes. They came at a time when:

• Justice Omerjee’s retirement on health grounds was imminent [it became effective at the end of May];
• Justice Gwaunza was still absent from active duty, although due back soon [she is now back and sitting in this week’s cases]; and
• Justice Makarau, although still a Supreme Court judge, was indefinitely available for judicial duties because of her recent appointment as full-time chairperson of the Zimbabwe Electoral Commission.

The enlarged Supreme Court bench

As a result of these changes the nine substantive judges of the Supreme Court [and of the Constitutional Court] are:

• Hon Godfrey Chidyausiku, Chief Justice
• Hon Luke Malaba, Deputy Chief Justice
• Hon Vernanda Ziyambi
• Hon Elizabeth Gwaunza
• Hon Paddington Garwe
• Hon Rita Makarau [full-time Zimbabwe Electoral Commission chairperson, so not available for active duty]
• Hon Anne-Marie Gowora
• Hon Bharat Patel
• Hon Ben Hlatshwayo.

Acting Supreme Court judges

Because Justice Makarau is not presently available for judicial duties, acting appointments are necessary to bring Supreme Court numbers up to an effective nine for the time being. Two acting Supreme Court judges sat on the bench for the first two cases on 23rd and 24th May: High Court Judge-President George Chiweshe and High Court judge Antonia Guvava. Justice Chiweshe is sitting again in this week’s cases.

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