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Zimbabwe's Elections 2013 - Index of Articles
Supreme Court ruling on elections: What are the implications
June 05, 2013
The new Constitutional
Court of Zimbabwe has made its first constitutional case ruling
since the promulgation of the new
constitution of Zimbabwe. However, before assenting to the constitution
and apparently with this case in mind, President Mugabe swore in
two judges to the Supreme Court and ipso facto into the Constitutional
Court. The swearing in of the judges immediately before the commencement
of the new constitution was clearly designed to avoid the more rigorous
and transparent provisions of appointment of judges under the new
constitution. It was also designed to pack the new court with what
the schemers and think tanks in Zanu PF thought were judges sympathetic
to Zanu PF.
the case was filed
The case was
clearly sponsored by the chaos faction of Zanu PF to achieve three
results. First, it was to force an election in June 2013. Second,
it was to enable President Mugabe to singularly set the election
date without consulting the Prime Minister as is required by the
Agreement. Third, it was to force elections in Zimbabwe without
the necessary reforms. Fourth, it was to avoid the election being
in proximity of the UNWTO.
of whether the objectives were achieved
It is apparently
clear that the Zanu PF schemers basically failed in their ill-conceived
endeavours. The sadistic strategists in Zanu PF wanted an election
in June for two reasons. One was to trigger in the minds of the
Zimbabwean voter the intimidating memories of the June 2008
violence and therefore achieve the harvest of fear.
The second was of course
to avoid key reforms, especially the 30 day intensive voter registration
exercise from being implemented and the voters roll scrutinized.
However, the dates set by the Court, appropriately removes June
as an election month.
Further, with political
will and the necessary national and international pressure the reforms
are possible in the period given. In disqualifying June as an election
month, the constitutional court referred to the legal impossibility
on account of the necessary pre-election formalities that had to
In other words, probably
without intending it, the constitutional Court acknowledged the
necessity of reforms before elections.
The Constitutional Court
created dangerous precedent where the Court could set election dates
on behalf of the executive. Instead of simply ordering the President
to announce the election date by a particular date, the Court went
on to set the period within which the election had to be held. Therefore
the Zanu PF strategists inadvertently secured the usurpation of
the powers of the President to set election dates. This could not
have been their intention.
It is clear that the
Zanu PF strategists did not want elections within the proximity
of the UNWTO. However, the attempt by the Constitutional Court to
balance the political and the legal effectively puts the election
date in relative proximity to the UNWTO. The MDC has always been
on record to say that it prefers elections before the UNWTO provided
all reforms were completed.
It appears to have been
the hope of the Zanu PF strategists that the Constitutional Court
would pronounce that the President could act alone in setting the
election dates without having to consult the Prime Minister as is
required by the GPA. Tellingly, the Court avoided this question.
This means that even
within the period set by the Court, the President has an obligation
to consult the Prime Minister on the election date. Further the
international community particularly SADC can still influence events
in Zimbabwe. Information at hand suggests that there is an extraordinary
summit on Zimbabwe on the 9th of June 2013.
The MDC position is that
the issue is not so much on the date of the election. Rather the
issue is the conditions under which the elections will be held.
Therefore, key reforms that have a bearing on the freeness and fairness
of elections have to be implemented first before the actual elections
so as to avoid another disputed election in Zimbabwe.
First, the new constitution
provides for a mandatory extensive registration exercise for a period
of at least 30 days. That voter registration exercise should be
followed by a period of inspection of the voters roll. The money
for this exercise has already been secured and therefore the exercise
must commence immediately. Because this is a constitutional requirement,
it is not bendable.
Second, media reforms
which should result in all contesting and interested parties having
reasonably equal and fair access to the state media during the election
campaigns as provided in chapter 7 of the new constitution must
be implemented first. Because this is constitutional mandate it
is not bendable. This reform does not take ages to implement.
Third, the specter
of violence has bedeviled all Zimbabwean elections since 1980. With
this in mind, the new constitution makes it clear that Zimbabweans
have a right to elections free from violence. Therefore mechanisms
to ensure the total eradication of all forms of violence especially
state sponsored violence must be put in place before the election.
This is not bendable on account of its constitutional justification.
11 of our constitution provides for security sector reform. In terms
of this chapter, members of the security services must not be partisan
in that they should not campaign for or against a political party
or cause. They are also obliged to respect and obey the fundamental
rights of Zimbabwean people. Further, they should not take part
in civilian institutions except in periods of public emergencies.
Therefore, a code of conduct, governing the behavior of security
services during elections has to be put in place before the elections.
As the genes of this provision are the constitution this is not
Fifth, key legislation
which have a bearing on the elections have to be amended in order
to bring them in conformity with constitution. These include the
, and AIPPA.
legal implications of the judgement
Precedent can at law
be a double edged sword. In this ruling clearly driven by political
considerations the constitutional Court has made pronouncement and
a. It is permissible
for any citizen to approach the Constitutional Court and assert
a right no matter how remotely they are affected by the violation
or potential violation. This is now different from the legal position
that existed during the determination of the United Parties v Minister
of Justice case.
b. In interpreting constitutional
provisions, the court must be liberal and lean more in favour of
the violated or potentially. In other words, the interpretation
favouring the violated will take precedent over that which favours
c. All executive decisions
or omissions are subject to judicial review. This means no executive
action or inaction is beyond judicial reproach or enquiry.
d. Zimbabwe must be brought
back to constitutionalism. The state must never be allowed to fail
to abide by constitutional or legal provisions.
The MDC's position that
key reforms have to precede the elections is justified by the constitution
and the judgement. All these reforms derive from clear constitutional
provisions. As the Constitutional Court has ruled, Zimbabwe must
never be allowed to ignore any of the provisions of its constitution.
Therefore, the constitutional provisions upon which the MDC is basing
its calls for reforms to be implemented before elections can be
held. For the MDC, the issue is not so much about the date of elections.
It is more about the conditions under which the elections are held.
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