Pre-Referendum and Pre-Election challenges dismissed by the courts

COURT WATCH 12/2013

[3rd September 2013]

Pre-Referendum and Pre-Election Challenges Dismissed by the Courts

Part II – Cases to Postpone Election Date

Before starting on a series of Court Watches covering the post-election cases to be heard in the Electoral Court, we are completing the series on the pre-election cases which was interrupted by the coverage of the Mr Tsvangirai’s election petition to the Constitutional Court [see Bill Watches 39 and 40/2013 of 18th and 20th August.]

Part I of this series [Court Watch 11/2013 of 15th August] covered cases on the Constitutional Referendum of 16th March that were dismissed by the courts.

Part II This bulletin covers pre-election cases in which applicants tried to persuade the Constitutional Court to postpone the harmonised elections to a date later than the 31st July. The date of 31st July had been fixed by President Mugabe in his election proclamation in Statutory Instrument [SI] 86/2013, in accordance with the Constitutional Court’s decision in the Mawarire case on 31st May [covered in Court Watch 7/2013 of 11th June]. All these cases asking for a postponement of the polling date were dismissed by the court.

Note: Unless otherwise indicated, references to the Constitution are to the new Constitution, the relevant provisions of which were in force when these cases were heard.

4 Cases Taken to the Constitutional Court to Postpone the Election Date

The Extraordinary SADC Summit in Maputo on 15th June “agreed on the need for the Government of Zimbabwe to engage the Constitutional Court to seek more time beyond the 31 July 2013 deadline for holding the Harmonized Elections.” President Zuma’s Facilitator’s report, endorsed by the Summit, envisaged further consultations before approaching the court. But, without consulting or notifying his Inclusive Government colleagues from MDC-T and MDC, the Minister of Justice and Legal Affairs on 18th June filed an application with the Constitutional Court seeking the postponement of polling until 15th August. The Prime Minister and other stakeholders, believing this proposed extension still left too little time to prepare properly for elections, filed opposing papers and also made separate applications asking the court to postpone the date further; MDC Professor Ncube’s opposition to the very short time extension requested by Mr Chinamasa took the form of a counter-application seeking the court’s approval of a later date for the election as opposed to simply asking that the application be dismissed; as a counter-application it was not recorded as a separate case.

Chief Justice’s direction for consolidated hearing on 4th July Faced with four separate urgent applications [see below], and a counter-application to one of them, all seeking changes to the polling date, the Chief Justice held a case management meeting in his chambers to discuss the way forward with all the lawyers involved. At the conclusion of the meeting he directed that for the purposes of argument the four applications and the counter-application would be “consolidated”, so that they could all be dealt with in the same Constitutional Court hearing, on 4th July. The consolidated cases were as follows:

Case 1: Minister of Justice and Legal Affairs\

v

Jealousy Mawarire & 4 Others

Lodged on 18th June 2013

Minister of Justice and Legal Affairs Patrick Chinamasa submitted an application to the Constitutional Court for a 14-day extension of the 31st July deadline set by the Constitutional Court in its Mawarire decision of 31st May [see Court Watch 7/2013 of 11th June]. Mr Mawarire was cited as a respondent because he was the successful applicant in that case. In his application the Minister explained that he was applying for an extension because the SADC Summit on 15th June said he should do so, even though the President respected the court’s earlier order and he saw no legal difficulties or impediments in complying with it [text of application available on www.veritaszim.net or from veritas@mango.zw].

The Prime Minister filed opposing papers, saying the SADC Summit mandated only an agreed joint GPA principals’ application. [Note: he also filed a separate more comprehensive application – see below]

Professor Ncube’s counter-application set out a detailed justification for an extension to the election date. He argued that it would be legally impossible to hold the elections on 31st July because the new Constitution mandated that at least 30 days be set aside for an intensive voter registration exercise and voters’ roll inspection exercise. Also, the voters roll had to be closed for the purposes of the election 24 hours before nomination day; and under the new Constitution polling must take place at least 30 days after the nomination of candidates. [Professor Ncube had put forward this argument in an address to the SADC Heads of State at the Maputo Extraordinary Summit – available on www.veritaszim.net or from veritas@mango.zw]

Case 2: Nixon Nyikadzino

v

The President, the Prime Minister, and Others [including ZEC and the Registrar-General of Voters]

Lodged on 12th June 2013

This application, filed by a civil society activist, also asked for an extension to the election date, arguing that the holding of an election by 31st July violated a number of constitutional rights [political rights, right to administrative justice, right to equal protection and benefit of the law as a voter and citizen of Zimbabwe]. He argued that it would not be possible to implement essential pre-election implementation of other rights under the Constitution, including: section 52(a) [freedom from violence], section 58 [freedom of assembly and association], section 62 [access to information], section 208 [security sector alignment], section 84 [social services support for war veterans] and section 83 [rights for persons with disabilities]. In addition, the applicant argued that it was objectively impossible to comply with the court’s order to hold elections by 31st July as, according to the Constitution, elections can only be held in accordance with an Act of Parliament, which must comply with the Constitution. No such Act was in place, and, he submitted, the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) Regulations, 2013 enacted under the Presidential Powers (Temporary Measures) Act did not qualify.

Case 3: Maria Phiri

v

The President & 5 others

Lodged on 7th June 2013

Like many other people, Ms Phiri had previously been classified as an “alien”, but was confirmed as a citizen by the new Constitution. Her application was prompted by her personal experience of the lengthy process entailed in obtaining her new ‘Citizen’ ID document in order to register as a voter. She applied to have the election date postponed, arguing that the timetable that had been fixed for the election did not allow persons in her position to exercise their constitutional right to vote. Elections under the timetable would not, therefore, be in accordance with the Constitution.

Case 4: Morgan Tsvangirai

v

The President & 7 others

Lodged on 24th June

The Prime Minister lodged a separate application challenging the constitutional validity of the proclamation of elections by 31st July, given the legal impossibility of the timeframes, and the unconstitutional use of the Presidential Powers (Temporary Measures) Act to amend the Electoral Law by regulation [SI 85/2013]. The application also challenged the constitutionality of the Presidential Powers (Temporary Measures) Act itself, on the basis that its delegation of sweeping legislative powers, equivalent to those of Parliament itself, was inconsistent with the constitutional principle of separation of powers.

The Hearing and Decision on All Four Cases

On 4th July argument was heard from the lawyers for the parties in all the cases. Later the same day, after a brief adjournment, the Constitutional Court unanimously dismissed all the cases [including the application by Mr Chinamasa and Professor Ncube’s counter-application].

The Constitutional Court’s order

The court’s order not only dismissed all the applications, but also:

• confirmed 31st July as the election date

• dismissed Minister Chinamasa’s application for an extension of the election date

• dismissed the arguments for an extension of the 31st July election date raised in the other applications

• dismissed the challenges to the President’s election date proclamation and his Presidential Powers (Temporary Measures) (Amendment of Electoral Act) Regulations [SI 85/2013] [Note on SI 85/2013: Although the Constitutional Court endorsed this use of the Presidential Powers (Temporary Measures) Act, the regulations will expire in December, leaving the Electoral Act in need of substantial amendment by Act of Parliament to bring it into line with the Constitution.]

• declared “for the avoidance of doubt” that the coming elections must be held on 31st July in compliance with the court’s order of 31st May in the Mawarire case and in accordance with the President’s proclamation [SI 86/2013].

[Full text of court order available on www.veritaszim.net or, for those without Internet access, from veritas@mango.zw]

Written judgment

Reasons for judgment have not yet been released.

Comment: The absence, two months on, of the Constitutional Court’s reasons for judgment explaining its 4th July decisions is a cause for concern. The arguments put to the court by the lawyers for the unsuccessful applicants were not trivial. Granted, the circumstances necessitated swift decisions, but other courts, the legal profession and the general public are entitled to know why the court reached its unanimous decision on such important issues. Even a short summary of the thinking underlying the court’s conclusion, to be elaborated in a full judgment later, would have been helpful.

Providing reasons for judgment serves an important function in maintaining the rule of law, by demonstrating the independence, impartiality and accountability of the courts, maintaining public confidence in the administration of justice, and preventing undesirable speculation as to judicial impartiality. A formal court order, not accompanied by or at least promptly followed up by detailed reasons for judgment, may will tend to increase undesirable public suspicion and dissatisfaction, and prompt accusations of arbitrary use of the judicial power, no matter how unjustified suspicion, dissatisfaction and accusation may be in fact.

A rational statement of why and how a decision was reached also serves the objectives of predictability and consistency in the functioning of the legal system. This is because a court generally follows precedents set in earlier cases where the reasoning is applicable to the factual situation in the case before it, particularly where the precedent has been set by the highest court in the land. Having reasons for judgment in an important case publicly available means that lawyers advising clients will be better able to assess how cases with similar facts are likely to be decided, and advise their clients accordingly

The Judicial Code of Ethics adopted in early 2012 [SI 107/201] [available on www.veritaszim.net or from veritas@mango.zw] allows a maximum of 90 days for the issue of reasons for judgment, with an extension permitted only in unusual and exceptional cases by the head of the court concerned, in this case the Chief Justice.

Parts III and IV will deal with cases on voting rights, the nomination process and political-party funding

Veritas makes every effort to ensure reliable information, but cannot take legal responsibility for information supplied