Court ruling no basis for early Zim election

In arriving 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.

Percy Makombe's picture

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Natural Resource Governance Programme Manager

June 13th, 2013

In arriving 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 for making fair and reasonable judgements but it was not fulfilling its function. The word chancery itself is a boxing term. 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, which President Mugabe has now used as the reason to proclaim elections on 31 July.

The majority decision is a remarkable 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 controversy is how parliament ought to be dissolved and how soon elections could – or should – take place after the dissolution. According to the constitution there are two ways for Parliament to be dissolved – either through a presidential proclamation or automatic dissolution after the parliament’s five-year term comes to an end on 29 June, 2013.

But 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 dissolving parliament under Section 63 (4) as the president may, by proclamation in the gazette, fix.

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 four…

As constitutional 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’. Matyszak adds that inserting the colon after ‘on’ also means that the phrase must not only apply to dissolution by proclamation but also 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. Given this, it boggles the mind that the Chief Justice would decide to introduce a colon in a sentence that does not have one and thus unwittingly lead the court into the realm of absurdity.

But the errant colon is far from the ruling’s only aberration. 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 points to the fact that the proclamation dissolving parliament was issued on 24 January 2008 and led to elections just over two months later. One can only surmise that this example was given to buttress the court’s order by showing that it is indeed possible to organise elections within two months in Zimbabwe.

But this is misleading to say the least because the situation in 2008 was remarkably different to now.

For starters, Zimbabwe is currently following two constitutions. Chapter 7 of the new constitution is clearly the supreme law regarding elections, but Zimbabwe still has to be guided by the Lancaster House constitution in relation to the timing of elections. More importantly, the two constitutions must be read together with the Sixth Schedule of the new constitution, which outlines provisions that are meant to assist the transition from the old constitution to the new one. 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 that must comply with the new constitution. Put simply, 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 nothing persuades me that the honourable justices who proffered the majority opinion sufficiently engaged with the new constitution and understood the various legislative provisions that 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 are also necessary in relation to criminal procedure and the justice delivery system as well as clarity on the operations of the Electoral Court itself. Implementing all these reforms is not a walk in the park and elections cannot proceed without them. Furthermore, 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, which have direct implications for 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 off after the publication of the new constitution. Under the auspices of the Zimbabwe Electoral Commission (ZEC), this process began on Monday June 10th and will, according to the ZEC Chair, run concurrently with the inspection of the voters’ roll. Given the start date, the process will end on Monday 9 July.  The nomination court would sit 14 days later (that takes us to 22 July) and after sitting for 30 days (takes us to 21 August), elections can take place. Even if we suspend our disbelief in the ability of the system to fast-track key reforms and assume that all amendments are somehow passed and operational, the earliest that an election date can legally be announced is 15 days before the conclusion of the voter registration exercise – giving us an earliest possible election date of 6 August.

To avoid any doubt, it is obviously not desirable for the President and the executive to continue in office for up to four months while parliament is absent, but it certainly is not unconstitutional. Indeed, the people who 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 are exhibiting very short memories since they could not be be further from the truth. Lest we forget, in 2008, parliament was dissolved in January and the new legislature only convened in August – and Mugabe was more than happy to run the show on his own for all those critical months. And no one could argue that Mugabe is a stickler for court orders because he is on record aiding and abetting the violation of court orders that are not palatable to him and ZANU-PF. Given all this, itseems to me that the best approach would have been to extend the life of parliament for a maximum of six months so that it has the time to align the various laws and regulations with the new constitution.

In Dickens’ Bleak House, fog is an important symbol – because it mystifies and confuses people and prevents them from seeing one another. The Court of Chancery is the source of this fog due to its disastrous obsession with form over content and because it is the master of the bleak world. While it is too early to suggest that Zimbabwe’s Constitutional Court has gone the Court of Chancery way, this judgement – the very first real test of the new constitutional order – does not inspire confidence. The judgement is full of palpable absurdities and is, to put it mildly, preposterous.

Indeed, there is only one way that the July 31st deadline set by the Constitutionl Court can be met and that is by violating the constitution. Prime Minister Morgan Tsvangirai certainly believes that President Mugabe has acted 'unlawfully and unconstitutionally' by declaring that the polls will go ahead on July 31st. It will be up to the courts to decide which man is right.

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