MY attention was last week drawn to a report in the Herald of April 5, which suggests daggers were drawn against my person, in my capacity as Prime Minister Morgan Tsvangirai’s “legal adviser”, apparently for giving “wrong legal advice” to him in an elections-related case that was before the High Court.
Opinion by Alex T Magaisa
This is odd.
First, there are no daggers, apart from those carried in the words of the malicious report. Secondly, I am not the premier’s “legal adviser”.
Thirdly, I may not be sufficiently knowledgeable about the ethics of journalism, but I would imagine a decent journalist or newspaper would seek comment from the subject of his or her report before publishing.
In any event, it is a cardinal principle of natural justice and fair play that one is given an opportunity to be heard. None was sought from me. Hence, my view that the story was motivated by malice.
I would not normally respond to malicious reports of this character, but in the circumstances of this matter it is important to clarify certain issues.
While I have recently been and am currently away from the office — and therefore have not been directly involved at the inception of this case, I nevertheless take responsibility for my duties, as my position commands.
The fact of the matter is that contrary to information that has been disseminated through some quarters, the intervention by the prime minister in the case produced a positive outcome and victory for democracy.
Brief facts of the matter are that three former MPs sought legal recourse through the courts to compel Mugabe to set dates for by-elections in their constituencies.
This matter has dragged on for a few years, with the president seeking and getting on two occasions the courts’ indulgence to delay the holding of by-elections.
The idea is that if harmonised elections are due to be held soon after the by-elections, the latter exercise would be a waste of resources. Therefore, it would make practical sense to “combine” the two elections by simply holding the harmonised elections. On these issues, there is a general understanding and convergence between the principals. Admittedly, it does stretch the law, but in a way that does not offend common sense.
As the March 31 court deadline for Mugabe to set dates for the by-elections approached, Tsvangirai raised this issue with his fellow principals and made it clear that the issue of by-elections should be dealt with separately from the harmonised elections and that it should not be used to rush the country into polls without consultations.
This is because consultations are premised on the fulfillment of certain fundamental reforms that must be made under the Global Political Agreement (GPA) and the envisaged constitution to make the electoral playing field level and fair.
There was a general understanding that the harmonised elections would be subject to consultations.
When the court application submitted at the end of March on behalf of the president was drawn to the premier’s attention, there was an indication in the papers of an intention to hold the harmonised elections by June 29, the basis upon which it was argued that there would be no need for by-elections.
I am advised that the plea to the court was for the president to be excused from setting dates for by-elections “on condition that harmonised elections are held by 29th June 2013”.
This, to the prime minister, appeared like an attempt by his co-principal to unilaterally set the date for general elections through a judicial process.
Indeed, in his interview with the media in Rome, Justice minister Patrick Chinamasa had stated plainly the intention to hold the harmonised elections by June 29. This is what Tsvangirai objected to.
Tsvangirai’s major interest is that the key reforms that affect elections envisaged under the GPA and the constitution must be implemented before elections are held. This needs more time than a June 29 deadline provides.
These reforms include, inter alia, media reforms, depoliticisation of the security sector and re-alignment of existing laws with the new constitution, among others. The reforms will make the electoral environment better than that which existed in 2008.
When the matter came before the court, and after the prime minister’s legal representative informed the court of the premier’s intention to be joined to the proceedings in the context of the president’s specific reference to a harmonised election on or by June 29, the Attorney-General (AG)’s Office representing the president indicated that they would no longer be pursuing the argument regarding harmonised elections and would instead focus only on the by-elections issue.
I am advised they undertook to abandon the argument that the president should be excused from the need to call for the by-elections “on condition that harmonised elections are held by 29 June 2013”.
Instead, the president would only seek to be excused from calling for by-elections.
As a result, the order sought by the president would have nothing to do with harmonised elections.
Essentially, they had changed the thrust of their initial application and climbed down from the position against which the prime minister had objected. I am advised that the learned judge said in light of the changed position of the president, the prime minister might need to re-consider his application for joinder particularly as it was largely premised on the initial reference by the president to harmonised elections.
Out of abundance of caution and to be sure, the prime minister sought written confirmation of this changed position from the AG. This confirmation was given through a written letter, and heads of arguments, both addressed to the prime minister’s lawyers.
I quote from the letter dated April 4 2013: “In our current application in HC 2362/13 the president seeks to be excused altogether with publishing the proclamation in question as the political landscape has changed …”
Satisfied that he had achieved the outcome that he had sought in the first place, the prime minister formally withdrew his application for joinder.
It was no longer necessary to pursue the application having achieved the result that he sought in the beginning. He had managed to persuade his co-principal to drop the issue of harmonised elections from the application. Any further participation in the case would only have been of academic significance.
Magaisa is the adviser to Prime Minister Morgan Tsvangirai. — email@example.com