Old judges unlikely to offer new jurisprudence

THE new Constitutional Court (Concourt) is unlikely to offer new jurisprudence into the law because the same judges who were in the Supreme Court are the ones sitting in the Concourt which passed a controversial judgment ordering that elections be held by July 31.

Report by Brian Chitemba

The Concourt, led by Chief Justice Godfrey Chidyausiku, stirred controversy and sharp criticism from legal pundits over its ruling after a shadowy non-governmental organisation — the Centre for Election Democracy in Southern Africa, run by Jealousy Mawarire — filed an application demanding President Robert Mugabe should urgently proclaim elections dates, arguing delays in proclaiming the poll dates violated his constitutional rights.

The Research and Advocacy Unit (Rau) said the judgement, which was in line with Mugabe’s wish to have early elections, was not surprising since the old Supreme Court judges now sitting as a Concourt were well-known for jurisprudence that favours the executive, particularly the president and Zanu PF.

The Concourt has nine judges comprising Chidyausiku, his Deputy Chief Justice Luke Malaba, Judge President George Chiweshe, Justice Antoinette Guvava, Justice Paddington Garwe, Justice Annemarie Gowora, Justice Vernanda Ziyambi, Justice Bharat Patel and Justice Ben Hlatshwayo.

Rau argues the Concourt bench which adjudicated the Mawarire matter were members of the Supreme Court whose judgments on constitutional matters were questionable.

The appointment of the new court was unilaterally done by Mugabe, who was supposed to consult Prime Minister Morgan Tsvangirai in keeping with the letter and spirit of the Global Political Agreement.

Rau said: “Since the new court comprises old judges, it may have been naive to expect jurisprudence different from that of the Supreme Court to emerge. But it is jurisprudence of this ilk through which the new Declaration of Rights in the new Constitution will be filtered.

“This is a direct consequence of negotiating a new constitution which did not provide for a fresh and reconstructed court to adjudicate upon constitutional matters, but rather the current Supreme Court operating, under a different name, albeit with a few more judges.”

Rau added that: “The judges of the new Constitutional Court seized with the matter were not fresh judicial appointees who had been through the selection process set out in Section 180 of the new constitution, which potentially curbs presidential influence over judicial appointments.”

Rau said Chiweshe and Hlatshwayo were both likely to comfortably complement the Chidyausiku jurisprudence, given that these judges were well-known for ruling in favour of the executive and Zanu PF.

For instance, in 2011 Chiweshe dismissed an application which pointed out that the constitution provides that there “shall” be 31 ministers in the inclusive government, yet Mugabe appointed 41. Chiweshe ruled that 41 “does not outrageously exceed” the stipulated 31 and he would take a “broad approach” to constitutional interpretation, saying the purpose of the then constitution was to create stability.

The Chiweshe ruling was heard on appeal nine months ago but the Supreme Court is yet to issue a ruling and is unlikely to do so before a new government is formed.

Therefore, the previous controversial rulings by the judges who now sit in the Concourt has put the highest court of the land under the spotlight.

In the Mawarire case, Chidyausiku penned the judgment for the majority, with six judges appending words “I agree” to the Chief Justice, save for Malaba and Patel, who had dissenting opinions.

They said the majority was wrong in its ruling as the old constitution, which together with the new one will be used to hold the next elections during the transitional period, allows for the polls to be held within four months after the dissolution of parliament, either by the president before its tenure ends, or automatically when it expires.

Rau further argued the Concourt judgement was incorrect because it is impossible for the country to hold polls by July 31 considering outstanding processes that need to be implemented as provided by the new governance charter.

The Mawarire order, Rau said, created a possibility that the president may not be able to comply with both the court order and the constitution because provisions of the new constitution stipulate that there must be at least 44 days between the proclamation of the election dates and election day.

The new constitution also provides that the Electoral Act cannot be changed once the election dates have been announced, meaning the president may not proclaim poll dates until the amendments to the Electoral Act have been finalised.

“There is no guarantee that the MDC formations will agree to the amendments at least 44 days before July 31, 2013. The president will then either have to violate the constitutional requirement that 44 days elapse between the electoral proclamation and the election itself, or fail to meet the July 31, 2013 deadline,” said Rau.

“Furthermore, the 44 days is the minimum period between the proclamation and the election. The last amendment to the Electoral Act, responding to a request from the Zimbabwe Electoral Commission which believed the previous 42 days too brief for logistical purposes, extended the minimum period to 56 days. If this or a similar period is retained, the president will not be able to comply with the Concourt order and the Electoral Act simultaneously.”

Rau suggested that it could have been more appropriate for the Concourt to order that elections be held within a minimum period of four months as provided for by the new constitution.