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Pre-referendum and pre-election challenges dismissed by the courts – Court Watch 11/2013
Veritas
August 15, 2013

Part I - Pre-referendum challenges

This bulletin outlines three court cases, all questioning aspects of the Constitutional Referendum ahead of its holding on 16th March, and all dismissed by the courts. Part II will cover cases challenging aspects of the harmonised elections ahead of the polling date that were also dismissed by the courts.

Note:

1. There are references to cases being referred to the Supreme Court or taken direct to the Supreme Court on constitutional grounds as the Supreme Court was then the court of final jurisdiction to decide constitutional issues – this was before the gazetting of the new Constitution brought the Constitutional Court into being on 22nd May.
2. All references to the Constitution during the time leading up to the Referendum refer to the former constitution.

Case 1: Application for extension of referendum date

National Constitutional Assembly [NCA] v President of Zimbabwe

High Court application - On 19th February 2013 the National Constitutional Assembly [NCA], represented by lawyers Alec Muchadehama and Andrew Makoni, filed an urgent application in the High Court seeking an extension of the Referendum date, which had been fixed as 16th March in a Presidential proclamation gazetted on 15th February [SI 19/2013]. The NCA argued that this date meant the electorate was not given enough time to read and understand the draft constitution before voting on it. It therefore sought an order declaring the proclamation unlawful and contrary to section 3 of the Referendums Act. They argued that, while this section enables the President to call a Referendum to ascertain the view of voters on any question or issue and to fix the date for the holding of a Referendum, it implies an element of reasonableness – and the period allowed by the President was not reasonable. There is a principle in law that a statutory power must be exercised reasonably. The matter was heard in the High Court on 25th February by Judge-President Chiweshe.

On 28th February Justice Chiweshe dismissed the application, ruling that the President’s power to set the Referendum date was not subject to review by a court.

Written judgment
Reasons for judgment have not been released.

Supreme Court appeal
On 1st March the NCA, through their lawyers, filed an appeal in the Supreme Court, appealing against Justice Chiweshe’s decision and requesting the court to extend the Referendum date.

The appeal was set down for hearing on 13th March. At the hearing, the Supreme Court agreed that the proclamation of the Referendum date was reviewable by a court, but on the merits of the application it ruled that the NCA’s evidence did not prove its complaint that the time allowed by the proclamation was inadequate.

Written judgment
Reasons for judgment have not been released.

Case 2: NCA challenge to composition of Zimbabwe electoral commission

National Constitutional Assembly [NCA] and Lovemore Madhuku v The President and the Acting Chairperson of ZEC

This application argued that the Zimbabwe Electoral Commission [ZEC] had not been properly constituted for the holding of the Constitutional Referendum on 16th March. The application was lodged on 13th March at the Supreme Court as a direct constitutional application. The argument was that section 100B(2) of the then current Constitution required the chairperson of ZEC to be “a judge or former judge of the Supreme Court or the High Court, or a person qualified for appointment as such a judge”. The resignation of Justice Mtambanengwe on 12th February had left the position of ZEC chairperson vacant during ZEC’s preparations for the Referendum. And the Acting Chairperson of ZEC, Mrs Joyce Kazembe, did not satisfy the constitutional requirements for a chairperson. The applicants argued that this situation violated section 18(1) of the then current Constitution [protection of the law], and section 18(1a), in that the President and Acting Chairperson of ZEC had failed in their duty to exercise their functions as public officers in accordance with the law. The applicants therefore sought the postponement of the Referendum.

Urgency

A separate chamber application was lodged for the main application to be heard on an urgent basis, prior to the referendum. But the chamber application for an urgent hearing was dismissed on 15th March, the urgency of the matter having been effectively circumvented by the President’s swearing in a few hours earlier of a hastily-appointed substantive ZEC chairperson, Justice Rita Makarau, who did satisfy the requirements of section 100B(2) of then current Constitution. The main application remains outstanding, not having been withdrawn or set down for hearing. It is now listed as a pending matter in the records of the Constitutional Court. [Note: Justice Makarau’s appointment as Chairperson of ZEC was not preceded by proper consultation with the Parliamentary Committee on Standing Rules and Orders, as required by the Constitution.]

Written judgments
Reasons for judgment have not been released.

Case 3: Majongwe et al’s challenge to referendum timing and handling

Raymond Majongwe, Hillary Yuba, International Socialist Organisation, Munyaradzi Gwisai
v
The President, the Chairperson of ZEC, the Speaker of Parliament, Munyaradzi Paul Mangwana, Douglas Mwonzora, Edward Mkhosi, the Zimbabwe Broadcasting Corporation and the Attorney General

This application was filed on 13th March 2013 in the Supreme Court. Unlike the February NCA application [Case 1, above], which challenged on the basis of a reasonable time implied in the Referendums Act, this application claimed that constitutional rights were breached by the short notice given of the Referendum. The applicants argued that the court should declare the Referendum proclamation of 15th February 2013 unconstitutional because their right of freedom of expression, in particular the right to impart and disseminate information on the Vote No campaign had been violated, and because the proclamation infringed section 23A(1)(c) of the then current Constitution by allowing insufficient time to the political parties to exercise the political rights that section conferred. The applicants wanted a new Referendum date to be proclaimed, a date that would provide the applicants with reasonable time to campaign and disseminate information on the Vote No campaign.

The applicants also sought an order against the Zimbabwe Broadcasting Corporation to afford them free and equitable coverage alongside those legitimately permitted to lobby for the draft constitution.

The application was heard and dismissed on 15th March, the court refusing to hear it as an urgent matter on the basis that the applicants had had plenty of time to take action earlier, but had failed to do so.

Written judgments
Reasons for judgment have not been released.

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