Court ruling puts Mugabe in a fix

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LAST week the newly established Constitutional Court handed down its first judgment in the case of Jealousy Mbizvo Mawarire v Robert Gabriel Mugabe N.O. and Ors CCZ1/13.

Column by Derek Matyszak

Mawarire had brought an urgent application “against” the president in a successful attempt to provide legal cover for Mugabe to do that which political constrains prevented — call elections as soon as possible.

The MDC formations and Sadc had been placing Mugabe under intense pressure to delay the polls, to allow time for the implementation of various democratic reforms. They were supported in this approach by Section 58(1) of the constitution which provides:

(1) 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(7) or, as the case may be, the dissolution of parliament under Section 63(4) as the president may, by proclamation in the gazette, fix.

The section refers to two methods by which parliament might be dissolved: through a presidential proclamation to this effect or on account of the expiry of the five-year term of parliament on June 29, 2013 (Section 63(4)).

Whether the dissolution is by way of a proclamation or on account of the automatic dissolution on June 29, an election must be held “within a period of not exceeding four months”.

Thus, as the dissenting judges Luke Malaba and Bharat Patel ruled, the provision clearly allows for the elections to be held as late as October 29, four months after automatic dissolution.

The new constitution provides that for the first seven years of its life, the bench of the Constitutional Court (“Concourt” as lawyers like to say) will comprise the members of the current Supreme Court.

Thus judges, who had adjudicated upon constitutional matters in the past, would continue to do so as Concourt judges, and this, of course, includes the Chief Justice Godfrey Chidyausiku.

It was not so long ago in one such matter (J. Moyo & ors v Zvoma Anor SC) that the chief justice had effectively stated that if the constitution provides something in clear and unambiguous terms then that is what must be applied. Yet what Malaba and Patel held to be the clear and unambiguous meaning of Section 58(1) would yield a result unfavourable to Mawarire and his supporters.

Writing the judgment for the majority, Chiyausiku argued as follows.
What if, he said, one were to read Section 58(1) as if there were a colon after the word “on” in the provision?

The section would then read like this: “Section 58(1): 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(7) or, as the case may be, the dissolution of parliament under Section 63(4) as the president may, by proclamation in the gazette, fix.”

The meaning would then be that the election had to be held “on” the dissolution of parliament and not “within a period not exceeding four months” thereafter. Thus, said Chidyausiku, the provision is capable of two meanings and ambiguous. And when the court is faced with an ambiguous provision, it must choose the meaning which does not lead to an absurdity.

The chief justice then went on to agree with the applicant, that it would be absurd to allow a four-month gap between the dissolution of parliament and an election. Such a situation would violate the principle of separation of powers, as there would be no legislature to act as check-upon executive powers and the president would have to assume the role of the legislature, and make laws by decree.

The judgment is problematic for numerous reasons. Most obviously, the real absurdity lies in inserting a colon into the section when none exists. The insertion of punctuation can dramatically change the meaning of a sentence. To give a worn example: “While the mother was cooking, the baby, her brother and the dog were sleeping” is very different from “While the mother was cooking the baby, her brother and the dog were sleeping”.

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.

The second difficulty is that, while it may be democratically undesirable for the legislature to be absent for extended periods, it is certainly not absurd. Several other jurisdictions including Malaysia, Ireland, Bulgaria and Canada allow for a hiatus between the dissolution of parliament and elections.

In all previous elections in Zimbabwe, the dissolution of parliament has preceded the election. Rightly or wrongly, this situation is specifically catered for by our legislative architecture, which the Concourt is sworn to uphold. For example, aside from Section 58(1) itself: The current constitution allows for parliament to be prorogued (to be in recess) by the president for a period of up to six months.

Parliament was dissolved on March 28 2008 before the elections of that year and only reconvened on August 26 2008, thus being dissolved for a period of five months without anyone claiming an absurdity.
The current constitution stipulates that no person may be a minister for longer than three months, without being an MP, but then provides that the period may be extended for longer than three months if parliament is dissolved in this period.

Thus the law clearly contemplates the executive continuing to function in the absence of parliament for periods of more than three months.

The old and new constitution both provide that the legislature consists of parliament and the president. Our law specifically allows the president to legislate by “decree” under the Presidential Powers (Temporary Measures) Act.

This is a law which has been repeatedly criticised and challenged by human rights activists, but as often upheld and enforced by some of the same justices of the Concourt, who now claim a hitherto undisclosed abhorrence for this kind of legislation.

The purpose of the Act is precisely to allow the president to make laws, which override any of those made by parliament, in periods when parliament is dissolved.

Thus, while the absence of the legislature for extended periods may be undesirable in democratic terms, it is specifically contemplated and provided for in our constitution, both the old and the new. The Concourt thus found an absurdity where none exists to resolve an ambiguity which it created.

It cannot simply alter the provisions of the constitution by inserting colons where none exist, simply because it believes that this will make the constitution more democratic.

Writing the constitution is the job of the legislature and a basic principle of the separation of powers that the court claimed to hold so dear.

The order issued by the court that the election must be held by the July 31 is also ill-conceived. While claiming that the July 31 date was selected because the June 29 deadline can no longer be met, the Concourt failed to consider other constitutional and legislative provisions which make it impossible for the July 31 deadline to be met also.

This is so for the following reasons: The new constitution stipulates that there must be a 30-day intensive registration period before the election. If this period is deemed to have started on the June 5, it will end on the July 4. The Electoral Act provides that no registration may take place after nomination day. Thus the earliest date for nomination day is July 4.

The new constitution also provides that there must be a minimum of 30 days between nomination day and the election, taking the earliest date for an election, if these laws are to be complied with, to August 3. The president cannot comply with both the Electoral Act and the constitution and the Concourt order all at the same time given these realities.

The new constitution provides that the Electoral Act cannot be changed once the election dates have been announced. But the Electoral Act must be changed to accommodate the new provisions in the constitution relating to proportional representation before the election. Parliament, dominated by the MDC parties, is now unlikely to allow an early passage of the amending Bill.

The new constitution provides that there must be at least 44 days between the announcement of the election date and the election itself. If the amendment to the Electoral Act is only passed after June 17, and the president waits for the change to take place, as the constitution requires, before announcing the election dates, there will be less than 44 days left between the announcement of the election date and July 31. In this situation, once more, the president will not be able to comply with both the constitution and the Concourt deadline.

The 44 days is the minimum. The Act currently provides for a longer period of a minimum of 56 days. If there is to be compliance with this provision of the Act (which was specifically inserted into the law by negotiation between the main political parties in 2012 to accommodate complaints by the Zimbabwe Electoral Commission that any shorter period creates logistical difficulties), the earliest date for an election would be mid-August.

The Concourt surely does not expect the legislature to draft amendments to enduring legislation in such a way as to take into account an ad hoc court order arising from a specific breach of the constitution by the president. This, indeed, would violate the principle of separation of powers.

None of these issues, of vital importance, were considered by the Concourt when granting the earlier election date desired by a section of Zanu PF. Despite the seemingly clear provisions of Section 58(1), perhaps it was naive to expect a new jurisprudence to emerge from a Concourt comprised of the same old judges.

With a Sadc summit pending, the question arises as to whether the regional leaders will, in the words of Malaba, “refuse to have wool cast over the inner eye of (their minds) on this matter”.

Matyszak is a lawyer and researcher with the Research and Advocacy Unit. To read the full version of his article visit www.researchandadvocacyunit.org

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