AS election-related applications from various quarters, some of them engineered by deceptive politicos and dark arts practitioners, flood the Constitutional Court (Concourt) in the aftershock of its controversial ruling ordering general elections by July 31, judges must be more reflective and cautious in handling politically-sensitive cases.
Editor’s Memo with Dumisani Muleya
Since the Jealousy Mawarire application and the subsequent contentious Concourt ruling, there has been a number of applications from citizens demanding protection of the court in relation to their suffrage, electoral processes and election dates.
Although Mawarire insists he initiated his application amid continued claims it was motivated by a political hidden hand, a developing combination of events and the wider political conjuncture shows Zanu PF, which has always been demanding elections since 2011 without adequate reforms, is celebrating the outcome.
Zanu PF leaders, from President Robert Mugabe, ministers and politburo members as well as their lawyers, have all been falling over each other to defend it, suggesting they had a vested political interest although the issue has now spawned a messy situation before the elections.
Mugabe has been uncharacteristically co-operative on the issue, which is unusual given his regime’s record of flouting the rule of law, court orders and selective application of the law, leaving people asking: “What is really going on here?” Mugabe still hasn’t implemented the Supreme Court order on by-elections issued last year as he has been asking for endless reprieve, but is very keen to enforce this one.
This is not the behaviour of a leader interested in the rule of law and to avoid rule by decree — never mind his resort to emergency powers last week when parliament is still active — as it has been widely claimed by his loyalists, but a clear Machiavellian attempt to stampede the nation into elections on his own terms without reforms and properly following constitutional and legal procedures.
Of course, the Zanu PF faction of rabble-rousers pushing for elections has many other reasons for devising this plot.
Some of them include Mugabe’s age and health issues, succession puzzle and managing events within and outside the party as they seek to define a post-Mugabe era, something already shown by the national constitutional arrangements they insisted on and their growing anxiety about the polls outcome ahead of Zanu PF’s elective congress next year.
In other words, this is all about politics, hence such skullduggery by Zanu PF hardliners who are trying to catch everybody by surprise by radicalising the political dynamic to create new conditions for survival before elections.
However, there have been so many unintended consequences of their actions and Zanu PF’s Fifth Columnists now face a jeopardy of being shipwrecked by events which they have inadvertently triggered.
Against this background, judges must be careful in handling the cases flooding the Concourt considering the real dangers inherent in them — not because of their own actions alone, but also events around us and the risk of them being viewed as politicians in the courtroom.
Recent comments by the Lord Chief Justice of England and Wales, Lord Igor Judge (his surname), that judges must not stray into politics are apt in this regard: “Judges have to be careful to remember that we are enforcing the law. As to that, we have no choice. We enforce the law as we find it to be.
“I think we have to be careful to remember that we cannot administer the responsibilities which others have. I think there is occasionally a danger of an overlap between us deciding what the law is and saying what it is, and then making a judgment accordingly.
“Occasionally — and I suppose it is inevitable — there is an overlap where what we are doing, or the orders that we make, actually impact on the administration for which others are responsible. We have to be careful to make sure that we stay within our proper function.”
Need we say more?