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poll decision is legal sophistry
June 13, 2013
at judgements, it is important that courts do not cultivate the
unsavoury impression that they are hell-bent on taking us back to
the Court of Chancery in Dickens' Bleak House.
The Court of
Chancery was entrusted with the responsibility of making fair and
reasonable judgements but it was not fulfilling its function. The
word chancery itself is a term in the art of boxing. If you are
in-chancery it means your head is held in someone's hand and he
punches you. If one gets into Chancery Court, one is thumped, one
is hammered. That was the feeling I got after reading the decision
of Zimbabwe's Constitutional Court ordering
President Robert Mugabe to hold elections by 31 July, 2013.
decision is an exercise in legal sophistry. It is much easier for
a camel to pass through the eye of a needle than for this decision
to make sense. The decision is not only poorly argued but represents
a clear and present danger to the holding
of credible elections in the country.
At the heart
of the contestation is how parliament ought to be dissolved and
how soon elections take place after this dissolution. According
to the constitution
there are two ways by which Parliament can be dissolved. It is either
through a presidential proclamation or at any rate an automatic
dissolution after the parliament's five-year term comes to an end
on 29 June, 2013. Either way it is clear that elections must be
held four months after parliament is dissolved.
Section 58 (1)
of the constitution which is cited, as the basis of the majority
decision penned by Chief Justice Chidyausiku is clear and unambiguous
on when elections must held. It states that:
A general election and elections for members of the governing
bodies of local authorities shall be held on such day or days within
a period not exceeding four months after the issue of a proclamation
under Section 63 (4) as the president may, by proclamation in the
The majority decision
advances the position that there are two ways of reading this section
depending on what the chief justice calls "punctuation and
emphasis". In Reading A, section 58 (1) would be read as if
there was a colon after the word "on": A general election
and elections for members of the governing bodies of local authorities
shall be held on: such day or days within a period not exceeding
expert Derek Matyszak has clearly articulated,
the introduction of the colon dramatically changes the section to
mean that the election has to be held "on" the dissolution
of parliament and not "within a period not exceeding four months".
Says Matyszak: Inserting
the colon in Section 58 (1) after the word "on" has the
effect of removing the application of the phrase "within"
a period not exceeding four months after" from the portion
of the section referring to automatic dissolution under 63(4). With
a proper and grammatical reading of the sentence, the phrase must
apply to dissolution by proclamation and to automatic dissolution".
Elsewhere in the judgement
the Chief justice makes the fair comment that in interpreting the
Law, the courts must follow an interpretation that does not lead
to an absurdity. The mind boggles why the Chief Justice decides
to introduce a colon in a sentence that does not have one and thus
unwittingly leads the court to an absurdity.
In giving the
president two months to hold the elections, the decision cites the
holding of the March 2008
harmonised elections as an example. Digging up Statutory Instrument
7 A of 2008, the chief justice gives the example of this proclamation
which was issued on 24 January 2008 and dissolved Parliament with
effect from midnight leading to elections in slightly over two months.
One imagines that the reason why this example is given is to buttress
the point that it is possible to organise elections within two months.
This understanding is misleading to say the least because the context
is remarkably different to the one in 2008.
Zimbabwe is following two constitutions in the sense that although
Chapter 7 of the new Constitution is the supreme law regarding elections
it has to be guided by the Lancaster
House Constitution on the timing of elections. More importantly,
the two constitutions must be read together with the Sixth Schedule
of the new Constitution which outlines provisions meant to assist
the transition from the old Constitution to the new Constitution.
The amount of legal work that needs to be done before elections
can take place is massively different from what was required for
the March 2008 elections. According to Section 8 of the Sixth Schedule
elections must be conducted in terms of the Electoral Law of which
law must comply with the new Constitution. Put simple, the Electoral
Act as well as other laws and regulations related to elections must
be amended so that they are in compliance with the new Constitution.
Having read the full
judgement of the constitutional court, there is no reason, however
magnificently maintained that persuades me that the honourable justices
who proffered the majority opinion sufficiently engaged with the
new constitution and understood the various legislative provisions
which make the July 31 deadline an impossibility. It is still not
clear how the proportional system of representation mandated by
the constitution will operate. There is need to amend the Local
Government Act and the Provincial Councils Act. Reforms also beckon
on criminal procedure and the justice delivery system as well as
clarity on the operations of the Electoral Court itself. Making
all these reforms is not a walk in the park and elections cannot
proceed without these reforms. What is more the various amendments
must sail through both Houses of Parliament and be signed into law
by the President before he can announce an election date. Indeed
according to section 157(5) of the new Constitution all amendments
to the Electoral Law and to any other provisions relating to elections
must be made before the proclamation of the election date.
There are also other
processes that need to be considered that have implications on the
absurd July 31 deadline. Section 6(3) of the Sixth Schedule makes
it mandatory for a 30-day intensive voter registration exercise
to kick in after the publication of the new constitution. The beginning
of this process depends on the Zimbabwe Electoral Commission (ZEC)
being properly financed and resourced. ZEC Commission chairperson
Justice Rita Makarau says voter registration will begin Monday,
9 June and will run concurrently with the inspection of the voters'
roll. If we take the bare minimum scenario then voters' roll inspection
would close on Monday 8 July. The nomination court would sit 14
days later (that takes us to 22 July), and after 30 days (takes
us to 21 August) of the sitting of the Nomination Court, elections
can take place. If we master the suspension of disbelief necessary
for a feigned belief in our ability to fast-track things it would
still be impossible to meet the July 31 deadline. The only fast-tracking
that can be done is if we assume that all amendments have been done
and are operational. This would mean that an election date is announced
during voter registration but even then it can only be announced
15 days before the conclusion of the voter registration exercise.
This would mean the earliest elections can be held is 6 August.
For the avoidance of doubt, it is not desirable that the President
and the executive can continue up to four months while parliament
is absent, but it certainly is not unconstitutional.
It seems to me that the
proper balance would have been to extend the life of parliament
for at most six months so that it can align the various laws and
regulations with the new constitution. Those with short memories
are peddling the fiction that President Mugabe is a true democrat
because he does not want the country to function without a parliament
for four months; nothing can be further from the truth. Lest we
forget, in 2008, parliament was dissolved in January and only convened
in August of that year and Mugabe was happy to run the show on his
own. And no one should argue that Mugabe is a stickler for court
orders because he is on record aiding and abetting the disobedience
of court orders that are not palatable to him and Zanu-PF.
In Dickens' Bleak House,
fog is an important symbol, and it is that condition in which things
are mystified and people cannot see one another. The Court of Chancery
is the source of this fog; it has a disastrous occupation with forms
at the expense of solutions. It is the master of the bleak world
and its attitude is that of polite smug and pretence. While it is
too early to suggest that Zimbabwe's Constitutional Court has gone
the Court of Chancery way, its judgement does not inspire confidence.
The judgement is full of palpable absurdities and is to put it mildly,
preposterous. The only way that the July 31 deadline can be met
is through violating the constitution.
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