New Bottles: Old Wine

The judgment concerned an urgent application by Mr. Mawarire, brought on the basis of a claim that the President was constitutionally obliged to set the dates for Zimbabwe’s next general election no later than the day after 29June 2013 when Parliament reaches the end of its constitutionally prescribed five year term. The failure to do so, Mr. Mawarire maintained, was a breach of his constitutional rights and would have the unconstitutional effect of the country being governed without a Parliament.

The case had various bizarre and curious facets even before the judgment was delivered. President Mugabe had repeatedly stated his desire to hold elections as soon as possible after the passage of the new constitution into law on 22 May, 2013 and he had indicated that he wanted the elections well before 29 October 2013, the date the MDC formations had contended was the latest possible constitutional date for the poll. Thus the immediate question is, if this was always the President’s desire,-to have elections by 29 June- why did he not exercise his presidential prerogative to dissolve Parliament and announce the earlier election date?

It is clear that Parliament was required to bring the new constitution into being, and it is also clear that Parliament could not have been dissolved before the Constitutional Bill became law. However, this did not in any way mean that the President could not have proclaimed the dissolution of Parliament at a future date that allowed ample time for the Constitutional Bill to be passed.

There were also many other complications related to the proclamation of elections:

1. The MDC formations and SADC all insisted that various reforms had to take place before elections;

2. Prior to the adoption of the new constitution, it was a constitutional requirement that the MDC-T Prime Minister, Morgan Tsvangirai, had to be consulted on the date of the dissolution of Parliament, if it were to be dissolved by proclamation rather than by automatic dissolution through the passing of time on 29 June 2013

It would not have been politically expedient for the President to have brought the application before the Constitutional Court himself because it would clearly confirm his desire for early elections. And so fortunately for him, Mr. Mawarire stepped up to the plate and brought the application “against” the President. Unsurprisingly the President’s “opposing” paper, did not dispute Mr Mawarire “the Applicant’s” case. In fact the President wholeheartedly agreed with Mr. Mawarire’s argument. What remains unanswered then is why, if he agreed with Mr. Mawarire’s interpretation of the law, he did not give reasons for his failure to comply with law in the first place. Giving these reasons would have guided the Court to realise that what Mr. Mawarire was asking for did not make much sense.

The issue before the nine member bench of the Supreme Court sitting as the Constitutional Court was to determine the chronological parameters mandated by the constitution for the holding of a general election following the dissolution of Parliament. The dissolution of Parliament can take place in one of two ways;

1. Either following a proclamation by the President for such dissolution, or

2. Through the passing of time when the five year term of Parliament ends.

The determination of the issue revolved around the interpretation of subsection 58(1) of the old Constitution, as read with subsections 63(4) and 63(7), which are still to apply until the new Constitution becomes fully operational.

Section 58(1) provides as follows:

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 judges of the new Constitutional Court seized with the matter were not fresh judicial appointees. They have been in these positions for long hence how they came to the conclusion they did is nothing short of perplexing. Chief Justice Chidyausiku gave the main ruling which stands and his stance was to construe section 58(1) so that its meaning became ambiguous. This was done by violating some very basic rules of grammar in the following ways;

He inserted colons into the section (where none existed in the original) in a bid to clarify the ambiguity, but in essence what he did was to create an ambiguity that did not exist before. The insertion of punctuation can dramatically change the meaning of a sentence, for example:

‘While the mother was cooking the baby her brother and the dog were sleeping.’

When punctuated, the sentence is easier to read.

‘While the mother was cooking, the baby, her brother and the dog were sleeping.’

But leave out a comma and the text becomes more sinister

‘While the mother was cooking the baby, her brother and the dog were sleeping.’

So the importance of punctuation should never be underestimated.

By inserting a colon after “on” in section 58(1), Chief Justice Chidyausiku altered the meaning of the provision to read:

58(1) A general election and elections for members of the governing bodies of local authorities shall be held on: i)such day or days within a period not exceeding four months after the issue of a proclamation dissolving Parliament under section 63(7) or, ii)as the case may be, the dissolution of Parliament under section 63(4) as the President may, by proclamation in the Gazette, fix.

By putting the colons, Justice Chiyausiku created a new meaning for section 58(1) which gives the Applicant the desired result. That meaning is that the President must have set the election date within a period of four months before the dissolution of Parliament and that an election should be held upon the dissolution of Parliament and not soon thereafter.

This is not what the law (without the colons) says. The law says an election shall be held AFTER the President proclaims Parliament dissolved or AFTER Parliament dissolves naturally at the end of its five year term. That 5 year term would naturally come to an end on 29 June and the law allows the President to continue in office after Parliament has been dissolved but with the requirement for him to set an election date within four months from the time Parliament dissolves.

Further, the Chief Justice in coming to his conclusion made the assertion that reading the ‘after’ to mean ‘after’ would create a ‘mind boggling’ situation in which the country existed without Parliament. This does not make a sound argument. The Chief Justice knows very well that:

1. In the past the date for an election has always been announced AFTER, and not BEFORE, dissolution of Parliament which has meant that the President has continued to be in office WITHOUT a Parliament, albeit for shorter periods than 4 months.

2. The Constitution, in fact, specifically allows for Parliament to be ‘prorogued’ (delayed) for periods of as much as 180 days,and the power to prorogue Parliament for such an extended period lies with the President under the current constitution3.

3. The executive continued to function without legislative oversight for five months between the dissolution of Parliament for the March 2008 election and the start of the seventh Parliament in 2008 without anyone’s mind being boggled or any ruling of absurdity being made.

Even if this judgement is correct, the Chief Justice forgot some very important facts that will make it impossible for the President to comply with the 31 July deadline:

1. The provisions of the new constitution, which are effective from the date of publication, stipulate that there must be at least 44 days between the proclamation of the election dates and the Election Day itself.

2. The new constitution also provides that the Electoral Act cannot be changed once the election dates have been announced.

3. The Electoral Act must be amended to bring it into line with the new constitution, especially in regard to the introduction of a system of proportional representation.

4. The President cannot proclaim the election dates until the amendments to the Electoral Act have been finalised.

5. There is no guarantee that the amendments to the Electoral Act will be agreed upon and finalised at least 44 days before the 31st July, 2013 given that the last Amendment to the Electoral Act, at the Zimbabwe Electoral Commission’s Request, resulted in that period being extended to 56 days to take care of logistical issues.

This means that 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 31st July, 2013 deadline

*This post was adapted from an Opinion Piece produced by Derek Matyszak. To read more follow this link on the RAU website.