|
Back to Index
This article participates on the following special index pages:
Zimbabwe's Elections 2013 - Index of Articles
Part
II of pre-referendum & pre-election challenges - cases to postpone
election date - Court Watch 12/2013
Veritas
September 03, 2013
Read
Part I
Pre-Referendum
and Pre-Election Challenges Dismissed by the Courts
Part II –
Cases to Postpone Election Date
Before starting
on a series of Court Watches covering the post-election cases to
be heard in the Electoral Court, we are completing the series on
the pre-election cases which was interrupted by the coverage of
the Mr Tsvangirai’s election petition to the Constitutional
Court [see Bill
Watches 39 and 40/2013
of 18th and 20th August.]
Part
I of this series [Court Watch 11/2013 of 15th August] covered
cases on the Constitutional
Referendum of 16th March that were dismissed by the courts.
Part II This
bulletin covers pre-election cases in which applicants tried to
persuade the Constitutional Court to postpone the harmonised elections
to a date later than the 31st July. The date of 31st July had been
fixed by President Mugabe in his election proclamation
in Statutory Instrument [SI] 86/2013, in accordance with the Constitutional
Court’s decision in the Mawarire case on 31st May [covered
in Court
Watch 7/2013 of 11th June]. All these cases asking for a postponement
of the polling date were dismissed by the court.
Note: Unless
otherwise indicated, references to the Constitution are to the new
Constitution, the relevant provisions of which were in force when
these cases were heard.
4 Cases
Taken to the Constitutional Court to Postpone the Election Date
The Extraordinary
SADC Summit in Maputo
on 15th June “agreed on the need for the Government of Zimbabwe
to engage the Constitutional Court to seek more time beyond the
31 July 2013 deadline for holding
the Harmonized Elections.” President Zuma’s Facilitator’s
report, endorsed by the Summit, envisaged further consultations
before approaching the court. But, without consulting or notifying
his Inclusive Government colleagues from MDC-T and MDC, the Minister
of Justice and Legal Affairs on 18th June filed an application with
the Constitutional Court seeking the postponement of polling until
15th August. The Prime Minister and other stakeholders, believing
this proposed extension still left too little time to prepare properly
for elections, filed opposing papers and also made separate applications
asking the court to postpone the date further; MDC Professor Ncube’s
opposition to the very short time extension requested by Mr Chinamasa
took the form of a counter-application seeking the court’s
approval of a later date for the election as opposed to simply asking
that the application be dismissed; as a counter-application it was
not recorded as a separate case.
Chief Justice’s
direction for consolidated hearing on 4th July Faced with four separate
urgent applications [see below], and a counter-application to one
of them, all seeking changes to the polling date, the Chief Justice
held a case management meeting in his chambers to discuss the way
forward with all the lawyers involved. At the conclusion of the
meeting he directed that for the purposes of argument the four applications
and the counter-application would be “consolidated”,
so that they could all be dealt with in the same Constitutional
Court hearing, on 4th July. The consolidated cases were as follows:
Case
1: Minister of Justice and Legal Affairs v Jealousy Mawarire &
4 Others
Lodged
on 18th June 2013
Minister of
Justice and Legal Affairs Patrick Chinamasa submitted an application
to the Constitutional Court for a 14-day extension of the 31st July
deadline set by the Constitutional Court in its Mawarire decision
of 31st May [see Court Watch 7/2013 of 11th June]. Mr Mawarire was
cited as a respondent because he was the successful applicant in
that case. In his application the Minister explained that he was
applying for an extension because the SADC Summit on 15th June said
he should do so, even though the President respected the court’s
earlier order and he saw no legal difficulties or impediments in
complying with it [text of application available on www.veritaszim.net
or from veritas@mango.zw].
The Prime Minister
filed opposing papers, saying the SADC Summit mandated only an agreed
joint GPA principals’ application. [Note: he also filed a
separate more comprehensive application – see below]
Professor Ncube’s
counter-application set out a detailed justification for an extension
to the election date. He argued that it would be legally impossible
to hold the elections on 31st July because the new Constitution
mandated that at least 30 days be set aside for an intensive voter
registration exercise and voters’ roll inspection exercise.
Also, the voters roll had to be closed for the purposes of the election
24 hours before nomination day; and under the new Constitution polling
must take place at least 30 days after the nomination of candidates.
[Professor Ncube had put forward this argument in an address to
the SADC Heads of State at the Maputo Extraordinary Summit - available
on www.veritaszim.net
or from veritas@mango.zw]
Case
2: Nixon Nyikadzino v The President, the Prime Minister, and Others
[including ZEC and the Registrar-General of Voters]
Lodged
on 12th June 2013
This application,
filed by a civil society activist, also asked for an extension to
the election date, arguing that the holding of an election by 31st
July violated a number of constitutional rights [political rights,
right to administrative justice, right to equal protection and benefit
of the law as a voter and citizen of Zimbabwe]. He argued that it
would not be possible to implement essential pre-election implementation
of other rights under the Constitution, including: section 52(a)
[freedom from violence], section 58 [freedom of assembly and association],
section 62 [access to information], section 208 [security sector
alignment], section 84 [social services support for war veterans]
and section 83 [rights for persons with disabilities]. In addition,
the applicant argued that it was objectively impossible to comply
with the court’s order to hold elections by 31st July as,
according to the Constitution,
elections can only be held in accordance with an Act of Parliament,
which must comply with the Constitution. No such Act was in place,
and, he submitted, the Presidential
Powers (Temporary Measures) (Amendment of Electoral
Act) Regulations, 2013 enacted under the Presidential Powers
(Temporary Measures) Act did not qualify.
Case
3: Maria Phiri v The President & 5 others
Lodged
on 7th June 2013
Like many other
people, Ms Phiri had previously been classified as an “alien”,
but was confirmed as a citizen by the new Constitution. Her application
was prompted by her personal experience of the lengthy process entailed
in obtaining her new ‘Citizen’ ID document in order
to register as a voter. She applied to have the election date postponed,
arguing that the timetable that had been fixed for the election
did not allow persons in her position to exercise their constitutional
right to vote. Elections under the timetable would not, therefore,
be in accordance with the Constitution.
Case
4: Morgan Tsvangirai v The President & 7 others
Lodged
on 24th June
The Prime Minister
lodged a separate application challenging the constitutional validity
of the proclamation of elections by 31st July, given the legal impossibility
of the timeframes, and the unconstitutional use of the Presidential
Powers (Temporary Measures) Act to amend the Electoral Law by regulation
[SI 85/2013]. The application also challenged the constitutionality
of the Presidential Powers (Temporary Measures) Act itself, on the
basis that its delegation of sweeping legislative powers, equivalent
to those of Parliament itself, was inconsistent with the constitutional
principle of separation of powers.
The
Hearing and Decision on All Four Cases
On 4th July
argument was heard from the lawyers for the parties in all the cases.
Later the same day, after a brief adjournment, the Constitutional
Court unanimously dismissed all the cases [including the application
by Mr Chinamasa and Professor Ncube’s counter-application].
The Constitutional
Court’s order
The court’s
order not only dismissed all the applications, but also:
- confirmed
31st July as the election date
- dismissed
Minister Chinamasa’s application for an extension of the
election date
- dismissed
the arguments for an extension of the 31st July election date
raised in the other applications
- dismissed
the challenges to the President’s election date proclamation
and his Presidential Powers (Temporary Measures) (Amendment of
Electoral Act) Regulations [SI 85/2013] [Note on SI 85/2013: Although
the Constitutional Court endorsed this use of the Presidential
Powers (Temporary Measures) Act, the regulations will expire in
December, leaving the Electoral Act in need of substantial amendment
by Act of Parliament to bring it into line with the Constitution.]
- declared
“for the avoidance of doubt” that the coming elections
must be held on 31st July in compliance with the court’s
order of 31st May in the Mawarire case and in accordance with
the President’s proclamation [SI 86/2013].
[Full text of
court order available on www.veritaszim.net
or, for those without Internet access, from veritas@mango.zw]
Written
judgment
Reasons
for judgment have not yet been released.
Comment: The
absence, two months on, of the Constitutional Court’s reasons
for judgment explaining its 4th July decisions is a cause for concern.
The arguments put to the court by the lawyers for the unsuccessful
applicants were not trivial. Granted, the circumstances necessitated
swift decisions, but other courts, the legal profession and the
general public are entitled to know why the court reached its unanimous
decision on such important issues. Even a short summary of the thinking
underlying the court’s conclusion, to be elaborated in a full
judgment later, would have been helpful.
Providing reasons
for judgment serves an important function in maintaining the rule
of law, by demonstrating the independence, impartiality and accountability
of the courts, maintaining public confidence in the administration
of justice, and preventing undesirable speculation as to judicial
impartiality. A formal court order, not accompanied by or at least
promptly followed up by detailed reasons for judgment, may will
tend to increase undesirable public suspicion and dissatisfaction,
and prompt accusations of arbitrary use of the judicial power, no
matter how unjustified suspicion, dissatisfaction and accusation
may be in fact.
A rational statement
of why and how a decision was reached also serves the objectives
of predictability and consistency in the functioning of the legal
system. This is because a court generally follows precedents set
in earlier cases where the reasoning is applicable to the factual
situation in the case before it, particularly where the precedent
has been set by the highest court in the land. Having reasons for
judgment in an important case publicly available means that lawyers
advising clients will be better able to assess how cases with similar
facts are likely to be decided, and advise their clients accordingly
The Judicial
Code of Ethics adopted in early 2012 [SI 107/201] allows a maximum
of 90 days for the issue of reasons for judgment, with an extension
permitted only in unusual and exceptional cases by the head of the
court concerned, in this case the Chief Justice.
Parts III
and IV
will deal with cases on voting rights, the nomination process and
political-party funding
Veritas
makes every effort to ensure reliable information, but cannot take
legal responsibility for information supplied
Please credit www.kubatana.net if you make use of material from this website.
This work is licensed under a Creative Commons License unless stated otherwise.
TOP
|
