Silenced voices at home; orators abroad-the universality of justice


By Kuda Chitsike

One of the major reasons, leading to the negotiation of the Global Political Agreement was that violence during the run off period had reached unprecedented levels. Approximately 200 people were killed, thousands displaced and assaulted, but there was no mention of the rape that women suffered. It is well known that there was widespread violence, but what is less known is that sexual violence was perpetrated against women as a political strategy.  Previously, there was a lot of anecdotal evidence but no proper documentation was available in the aftermath of the election. Civil society organisations, including women’s groups were hesitant to talk publicly about politically motivated rape, even though survivors were seeking refuge in their organisations and their horror stories were known. The silence of the women’s groups muted the voices of the survivors; if well-established organisations were unwilling to speak on their behalf, who would listen to their individual voices? But as time went on the survivors of rape became bold, began speaking out about their experiences during the election period, and demanded to be heard and taken seriously.

The first public report on sexual violence in Zimbabwe during the election period was written by an American-based organisation, AidsFreeWorld, ‘Electing to Rape: Sexual Terror in Mugabe’s Zimbabwe.’ This report was released in December 2009 and it was based on 70 affidavits collected from women who were survivors of rape and were living in South Africa and Botswana where they felt free to speak.  A second report was produced by the Research and Advocacy Unit (RAU) and the Zimbabwe Association of Doctors for Human Rights (ZADHR) in 2010, entitled, ‘No Hiding Place: Politically Motivated Rape of Women in Zimbabwe.’  In these two reports, women reported that they were repeatedly raped and beaten for their support of the MDC, whether perceived or real, as the perpetrators told them so during the ordeal. Some stated that this happened in front of their children and family members, and, as a result of the rape, their marriages broke down. Most of the women did not receive appropriate care for the trauma that they had experienced. The women exhibited high levels of sleeplessness, nightmares, flashbacks, and hopelessness: symptoms, which are commonly associated with experiences of trauma.

These two reports gave credence to the claims that the women were making about politically-motivated sexual violence, and the issue could no longer be ignored.

The recently released findings of the Khampepe report supported what Zimbabwean organisations have been saying for the last 14 years, violence and intimidation are part and parcel of elections.  This report has implications for Zimbabwean women who lodged a case in 2012 in the South African courts with the support of AidsFreeWorld. The women brought their case to a South African court because they had failed to get any recourse in Zimbabwe. When they tried to report their cases to the police they were either turned away, told that the police were not dealing with political violence cases, or told by the police that they gor what they deserved. Sometimes the police outrightly  refused to open dockets, which effectively meant the women were unable to go for medical examinations.

AidsFreeWorld submitted an amicus brief to the South African courts after a case was brought by the Zimbabwean Exiles’ Forum and the Southern African Litigation Centre in 2008 on behalf of MDC supporters who alleged that they were tortured by ZANU PF supporters and state agents. On 30th October 2014, the Constitutional Court in South Africa ruled that the South African Police Service (SAPS) is obliged to investigate crimes against humanity “where the country in which the crimes occurred is unwilling or unable to investigate.” The ruling is based on the fact that South Africa is obliged to investigate because it signed and domesticated the Rome Statute on the establishment of the International Criminal Court.

This ruling has given hope to the Zimbabwean women who were brave enough to tell their stories. Unfortunately not all perpetrators will be brought to justice, but it sends the right message; that sexual violence will not be tolerated in any society for any reason.

Had the election report, which was compiled by the high court judges Sisi Khampepe and Dikgang Moseneke, been released when it was compiled it is highly probable that 2008 might never have happened as a government of national unity could have been negotiated in 2002. The Kamphepe report supported other observers’ groups that stated that there was serious election violence and it would have added to international pressure to end the Zimbabwean crisis.

As we commemorate the 16 days of gender activism, there is hope that justice will be delivered and that the victims of election violence, particularly the victims of rape that have not been acknowledged will get the redress they deserve. Although their voices may have been largely silenced at home, they can get justice abroad-proving that justice is a universal principle and that no atrocity committed against another human being can be hidden forever.

Key Statistics from the June 2013 Voters’ Roll


Today the Research and Advocacy Unit [RAU] launches a preliminary report on an audit conducted on the June 2013 Voters’ Roll. The audit was done initially at the request of MDC-T, but RAU has done the audit on the understanding that its analysis would be wholly professional and independent of any political party affiliation or consideration. RAU carried out a previous audit of the 2008 Voters’ Roll in 2009 – 2013 Vision – Seeing Double and the Dead. A preliminary Audit of Zimbabwe’s Voters’ Roll.

Embargoed copies of this preliminary report have been given to the Zimbabwe Electoral Commission (ZEC), with a request that the Commission makes this report available to all registered political parties contesting the forthcoming elections. This was done in an effort to assist the Commission, and all interested parties, in establishing the conditions for an election that conforms to the SADC Principles and Guidelines for the Holding of Democratic Elections, one of the conditions suggested by the SADC Facilitator as necessary for Zimbabwe to fully comply with the Global Political Agreement that SADC agreed to guarantee.

This preliminary report, however, raises very serious matters to be considered ahead of the elections, now to be held on 31st July, and, in short, suggests that there are serious shortcomings with the current Voters’ Roll. RAU will, in due course, issue a second, more comprehensive report on the June 2013 Voters’ Roll, and will hope to undertake a further analysis of the final version of the Voters’ Roll to be used in the forthcoming elections.

In brief, today’s report indicates the following:

·         Comparing the June 2013 Voters’ Roll with the 2012 Census, there are 63 Constituencies where there are more registered voters than inhabitants;

·         There are currently nearly 1 million potential voters aged under 30 years who are unregistered, but this may change in the aftermath of the intensive voter registration exercise;

·         There are well over 1 million people on the roll who are either deceased or departed;

·         That 40 Constituencies deviate from the average number of voters per constituency by more than the permitted 20%.

Copies of the full report can be obtained from the RAU website [www.researchandadvocacyunit.org].

As Zimbabwe’s 2013 Elections Approach: A Call for an End to Torture


Photo Accredited to Sokwanele

Photo Accredited to Sokwanele

The International Day in Support of Victims of Torture was created by the United Nations to end torture and raise awareness of an international convention, which went into effect on June 26, 1987 after it had been ratified by 20 states.

In support of victims of torture around the world, this year’s theme honors the “Right to Rehabilitation,” assured in Article 14 of the Convention Against Torture.  This right entitles survivors to long-term holistic medical, psychological, legal and social services.  Access to these resources is vital to healing the lives of those who have suffered and ensuring their safety and inclusion in society.  To truly restore hope to the victims of torture, this year’s focus on rehabilitation must be more than a slogan, but honored with concrete actions to guarantee these rights are implemented. 

As the world observes this day of solidarity, I pause to reflect on the Zimbabwean 2008 elections when human rights activists and opposition supporters were targeted and tortured for their political affiliation.  I believe the year will be remembered by many as the darkest year in the history of Zimbabwe since independence.

I was present in Zimbabwe during that fateful year and watched powerlessly as my fellow human beings were subjected to some of the most degrading treatments.  Examples of these abuses were reported by international media like  Dateline,  an Australian current affairs news program.  Some supporters of the opposition party were held at a torture camp known as Matapi Base in Mbare—a township on the outskirts of Harare—where they endured beatings on a daily basis.  There were 328 cases of torture alone by August of that year.  The wave of violence that engulfed the country left many with permanent physical and psychological scars.

Those who lived to tell the stories of their ordeals were left in a state of constant fear due to intimidation from their victimizers. Many among the victims are yet to find rehabilitation for the abuses they were subjected to.

In the following video produced by WITNESS and our partner in Zimbabwe, Research and Advocacy Unit, one survivor tells her story of the sexually based violence she and many other women and girls endured in the last election.  Targeted and raped for her political activism, her struggle to cope with the trauma of her experience stresses the urgency of focusing on rehabilitation for victims and their families.

We can no longer afford to stay quiet when our Zimbabwean brothers and sisters are faced with uncertainty.  As Zimbabwe prepares for the next election in August, we must stand in solidarity with them by persuading decision makers (both local and international) to put necessary mechanisms in place that will ensure survivors’ right to rehabilitation and to elections free from torture.

This Blog is reposted from the witness website, the original can be found on

http://blog.witness.org/2013/06/as-zimbabwes-2013-elections-approach-a-call-for-the-end-to-torture/

ZIMBABWE’S DUAL LEGAL SYSTEM


Zimbabwe is often stated to have a “dual legal” system, whereby traditional customary laws run parallel to the formal and statutory laws of the State. However, it now seems increasingly possible to say that another duality is emerging, the law as it is and the law as interpreted by ZANU PF, its sycophants, acolytes and supporters, overt or covert. Curiously enough Dr. Madhuku has recently made several odd pronouncements on the law which are closer to the latter than the former and seem more in keeping with his announced intention to venture into politics, than as a legal expert.

His latest such pronouncement, if the Herald of Monday 17th June 2013 is to be believed, is that Mugabe is unable to approach the Constitutional Court, as requested by SADC, to extend the 31st July election date deadline, as was ordered in the Mawarire case on the 31st May, 2013. The apparent basis for this contention is that the Concourt is unable to alter an order which has already been implemented.

This contention is bizarre. Subsection 38(4) of the Electoral Act specifically allows the dates given in an electoral proclamation to be changed by the President. According to Dr. Madhuku’s argument, since the Constitutional Court order has already been implemented, the President would be free to use subsection 38(4) to move the election date beyond the 31st July, without being in contempt of court, as he had already implemented the order as required. This is manifestly not so. The clear import of the Concourt order is that whatever election date is proclaimed, either as originally set or as altered, it must be one which ensures that the election takes place before 31st July. (And here we are supposed to ignore the argument advanced by Dr Madhuku and the Minister of Justice in 2008 around the date for the Presidential run-off election, that “the election” does not mean the date of voting but the entire electoral process ending only upon the announcement of the result – an argument which now seems forgotten in applying the Concourt order).

It seems necessary to state the obvious. The logic of the Concourt judgment, and the order issued, is that the election date the President must set, must be one that ensures that the election is held before the 31st July. If he wishes to use section 38(4) to change this date, to avoid being in contempt of court, he must approach the court to indicate why he is unable to apply the order – as he did so many times before in the case of the court orders issued around the by-elections.

There is a difficulty here, however. The basis upon which the extension could have been requested has changed. Initially it seemed that the President could not comply with both the Concourt order and the Constitution and electoral legislation. The Constitution requires a 30 day intensive registration process which the parties agreed in Cabinet had commenced on the 9th June (though which the Minister of Justice has since claimed was somehow self- implementing the moment the new constitution was passed). The Electoral Act provided/provides that voter registration must end the day before the nomination court sits. Thus the nomination court could not sit before the 9th July, and, as the Constitution provides that elections can be held no sooner than 30 days after this, bringing elections to the 9th August, there could be no simultaneous compliance with the Concourt order. Furthermore, the new constitution also provided that the Electoral Act could not be changed once the election dates had been announced. As the constitutionally mandated amendments were unlikely to come before parliament before the 17th June, and the new constitution requires a minimum 44 day period between the proclamation of the election date and the election itself (now interpreted to mean election day), once again it seemed that the need to amend the Electoral Act meant that the Concourt order could not be complied with without breaching the Constitution.

The President attempted to deal with both these problems by use of the Presidential Powers (Temporary) Measures Act (PPTMA). He thus issued Regulations, purportedly under that Act, not only incorporating the amendments to the Electoral Act relating to proportional representation etc, but also, reportedly, to change the Electoral Act so that voter registration may continue after nomination day.

This then supposedly resolved the problem of the constitutional requirement of the 30 day intensive registration period and the difficulty of amending the Electoral Act before proclaiming the election dates. The extension of 31st July deadline on the ground of unconstitutionality was thus seemingly extinguished.

However, the Regulations issued under the PPTMA are themselves unconstitutional. This is not on the basis of section 134 of the new Constitution, which precludes Parliament from delegating its law making authority, as the Prime Minister’s office has suggested, since is not yet in effect. It is because both the old and new constitution specifically require that electoral law is made only “by an Act of Parliament” and emphasises this is so particularly in relation to voter registration, a provision, as noted above, that the President has purported to alter by Presidential Regulation and not an Act of Parliament.

In considering the extension of the July, 31st the Concourt may be asked to rule that using the Presidential Powers (Temporary Measures) Act, as the President has done, to alter the Electoral Act is illegal, and that the problems relating to the amendment to the Electoral Act and the 30 day registration period remain, rendering the 31st July date constitutionally impossible.

However, the same judges who will adjudicate this matter have been reluctant to interpret the PPTMA as being restricted in this way by the Constitution. In 2002 in the matter of Tsvangirai v Registrar General, when precisely this issue was raised, only Sandura JA dealt with the point, holding that the PPTMA could not be used to amend electoral legislation. The remainder of the judges sidestepped the issue, and (astoundingly) held that Tsvangirai did not have the right to approach the court (locus standi) on the matter. Furthermore, if the President or the Minister of Justice makes the application for the extension, neither of the two could be expected to suggest to the court that the use of the PPTMA to amend electoral legislation, was illegal, now the sole basis for the extension.

An alteration of the 31st July deadline will also be a tacit admission by the Court that its order in the Mawarire case was legal nonsense. It will thus be a matter of no little interest as to how these judges will approach the Application to change the date, which has now been filed by the President.

Derek Matyszak

19.06.13.

Reforms and elections: The need for a Transitional Executive Council


When South Africa was faced with the problems of negotiating its transition by an election in 1994, it produced an extremely important mechanism to ensure that the election would be free and fair, and that the overwhelming power of the South African state (dominated by the National Party) could not be used to the advantage of the government in power. It did this by creating a Transitional Executive Council, a body that would exercise some of the delegated powers of the government and Parliament. This was a highly successful innovation that, in fact, was crucial to South Africa holding a wholly valid election, and moving safely to a change of regime. The TEC idea has considerable merit for Zimbabwe presently.

Consider the objects of the TEC:

(a) creating and promoting a climate for free political participation by endeavouring to:

(i) eliminate any impediments to legitimate political activities;

(ii) eliminate any form of intimidation which has a bearing on the said transition;

(iii) ensure that all political parties are free to canvass support from voters, to organize and hold meetings and to have access to all voters for the purposes thereof;

(iv) ensure the full participation of women in the transitional and electoral structures and processes; and

(v) ensure that no Government or administration exercises any of its powers in such a way as to advantage or prejudice any political party;

(b) creating and promoting conditions conducive to the holding of free and fair elections;

 

Now the whole object of passing the Transitional Executive Council Act in 1993 was specifically to overcome similar problems to those currently faced by Zimbabwe. This highly innovative and courageous solution to the polarization in South Africa needs investigation by Zimbabweans[1].

Zimbabwe currently has a security sector blatantly (and illegally) expressing affiliation to apolitical party; the whole administrative apparatus (civil servants, local government officials, traditional leaders, etc.) of the state also affiliated to one political party; and finally the (mostly) discredited electoral machinery under the control of one political party. These are hardly the conditions under which a genuine, democratic election can take place, and this is the litany continuously and loudly proclaimed by political parties and civil society.

But how to then change this situation in the rapidly closing space ahead of the elections? Certainly there is insufficient time for legislative reform: there was barely enough time to pass the amendments to the Electoral Act, although this now seems remedied by Presidential decree. And it is certainly the case that both political parties and civil society generally has paid far too much time to the constitutional process and too little time to the process of reform. There have been many opportunities for the two MDCs to engage the crucial matters around reform, but this is not the place to recollect the missed opportunities. There has been a great opportunity under the GPA for civil society to re-position itself again as the watchdogs over the Inclusive Government, but this too has been largely lost.

This may all be water under the bridge with elections now slated for 31st July, but what was needed is for the political parties to agree that, taking a leaf out of the South African book, there is need to create the appropriate oversight bodies to ensure that the elections conform to the SADC Principles and Guidelines for the Holding of Democratic Elections. As was the case in South Africa, the government needed to create a Transitional Executive Council, and the requisite number of sub-Councils) to oversee the process.

This, of course, requires the political will to delegate much of the powers of the Government and the Presidency to a new body, but this is what was done for the South African elections in 1994, and the world acclaimed both the process and the wisdom of the political leaders: Nelson Mandela and F W de Klerk were awarded the Nobel Peace Prize.

How would this work in practice?

By Act of Parliament, an overall body would have been established to run the country up until the results were announced. This body would have been composed of representatives of all political parties, and it, in turn, would have established the sub-bodies to provide oversight of the electoral process. This needed not to be as comprehensive as was the case in South Africa where a large number of sub-councils were established: law and order, stability and security, defence, intelligence, foreign affairs, status of women, finance, and regional and local government and traditional authorities.

For Zimbabwe, only four key sub-councils would have been necessary: security sector (police, army and intelligence), media, local government, and traditional leaders. These would have been sufficient to ensure that the partisanship seen in all these areas was at least minimized. All Zimbabweans know that these are the critical institutions that allow or disallow free democratic activity, and, if constrained from being partisan, they could create the conditions for the kinds of poll that all Zimbabweans dream of. That Zimbabweans dream of freely and fairly voting is so evident from the recent referendum: that one million more voters turned out than in the previous elections in 2008 not only points out how many are currently disenfranchised, but also shows how keen Zimbabwean citizens are to participate in the political life of the country.

Could Zimbabweans ask for any less than this in our extremely vexed and polarized position? Could SADC ask for less in the light of their continual demand for reform? Will the President take this final opportunity to leave the legacy of an election that all can be proud of? Perhaps then we can have an election where, whichever party wins, the citizens can move into to the future knowing that they have freely elected the government of their choice?

However, another opportunity has been lost, and once again democracy is likely to be the loser in Zimbabwe.


[1] For a copy of the Transitional Executive Council Act,  see the Southern African Legal Information Institute. ]http://www.saflii.org/za/legis/num_act/teca1993336/]

THE ELECTION DATE CIRCUS, ACT II?


In several articles recently posted by RAU, it was noted that the President cannot comply with both the Electoral Law as it currently stands, and with the Constitutional Court ruling that elections be held by 31st July, 2013. Today’s (10.06.13) Herald has Professor Madhuku stating in effect “No problem. Mugabe can just use the Presidential Powers (Temporary Measures) Act to alter all the necessary provisions of the Electoral Act to enable him to meet the deadline”.

This suggestion gives rise to several deep ironies. It was Madhuku himself who is supposed to have hailed the Concourt ruling on the ground it would be undemocratic for the President to “rule by decree” (i.e. use the Presidential Powers (Temporary Measures) Act) without Parliament to operate as a check on his power. So now, in order to meet the Concourt deadline, it is suggested that the President unilaterally, without the consent of the other major parties, and without the oversight of Parliament alter the law governing an election in which he is a candidate. The law is thus to be changed to cater for an ah hoc court order issued due to a breach of the Constitution by the President. Any problems with the democratic nature of that, Professor Madhuku?

The second irony is that the new Constitution specifically includes a provision that once election dates are announced the electoral laws cannot be changed. This provision was undoubtedly inserted to prevent that which had happened before, when the President took advantage of the fact that Parliament was dissolved to issue a decree reinserting a provision into the Electoral Act which Parliament had but a few months before removed – one which allowed police officers into polling stations.

The Presidential Powers (Temporary Measures) Act provides that any laws made by the President in term of this Act must be laid before Parliament within eight days, whereupon Parliament may repeal or amend the law, or leave it as is.

However, the question will arise then as to whether this provision will apply if the election dates have been announced. Our Concourt may well hold that the provision in the Constitution that the electoral law cannot be changed overrides this provision of the Presidential Powers (Temporary Measures) Act. The irony then is that a provision designed to prevent the President from altering electoral law, has in fact strengthened his power to do so, as once the President has unilaterally made the law and announced the dates, it cannot be changed by Parliament. Furthermore, while the whole reasoning behind the Concourt deadline is that rule by the President without Parliament is undesirable, the effect is, according to Madhuku, to compel him to do precisely that.

However, it may be that on a correct interpretation of the Presidential Powers (Temporary Measures) Act and the new Constitution this situation will not arise.

To comply with the Concourt ruling the President will have to alter provisions of the Electoral Act specifically agreed between the main political parties and which formed part of the 2007 amendments to the Act – that is, that voter registration must end 24 hours before the nomination court sits. It is this provision which prevents the President from complying with the 30 day registration period in the Constitution and the Concourt order.

However, The Act does not allow the President tomake a law “providing for any … matter or thing which the Constitution requires to be provided for by, rather than in terms of, an Act”. Voter registration is provided for by the new Constitution and section 157(1)(b) is to this effect:

157(1)  An Act of Parliament must provide for the conduct of elections and referendums to which this Constitution applies, and in particular for the following matters…

The “matters” then listed include proportional representation, the election of persons with disabilities, the election of provincial and metropolitan councils and the registration of voters.

So it is an Act of Parliament that must provide for this, and not a Presidential decree.

If there is to be compliance with the law, it seems that the President will have to ask the Concourt for a postponement, which he proved very good at during the by-election saga. The problem for the President is that if he is able to ask for a postponement to another date, this will then make it clear that the 31st July, 2013 is not carved in stone by the law, as ZANU PF would like the populace to believe.

New Bottles: Old Wine-An analysis of the Constitutional Court Judgement on Election Dates


On Friday 31st May, 2013 the newly established Constitutional Court issued its first judgment, that is the case of Jealousy Mbizvo Mawarire  v Robert Gabriel Mugabe N.O. and Ors CCZ1/13. 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 the 29th June, 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 the 22nd May, 2013 and well before October 29th, 2013, the date the MDC formations had contended was the latest possible constitutional date for the poll.

Thus the immediate question which arose was, if this was the President’s desire, 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 hence Parliament could not have been dissolved before the Constitutional Bill became law. However, did this in any way mean that the President could not have proclaimed the dissolution of Parliament at a future date that allowed ample time for Constitutional Bill to be passed?

There were also several 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

It would not have been politically expedient for the President to have brought the application before the Constitutional Court himself. However, a, Mr. Mawarire stepped up to the plate and brought the application “against” the President.  Unsurprisingly, the President’s “opposing” paper, rather than disputing the Applicant’s case, as is usual, wholeheartedly agreed with his argument, though did not it seems, having agreed with the Applicant’s interpretation of the law, offer any reasons why he had then failed to comply with it

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, or
  2. Through the effluxion 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.. Chief Justice Chidyausiku wrote the judgment for the majority.. In the judgment  he construed section 58(1) so that its meaning became ambiguous. This was done by violating some very basic rules of grammar in the following way.

He inserted colons into the section (where none existed in the original) ostensibly to highlight what he claimed was the ambiguous nature of the provision, but in factto creating 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.’

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 the insertion of the colons, Justice Chiyausiku creates 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.

This is not what the law (without the colons) says. The law says an election shall be held within a period of four months AFTER the President issues the proclamation Parliament dissolving parliament or within a period of four months AFTER Parliament dissolves automatically at the end of its five year term. That five year term  ends on 29 June and the law allows the President to continue in office, in this event, after Parliament has been dissolved, but with the requirement that he to set an election date within four months from the time of such dissolution..

Further, the Chief Justice in coming to his conclusion made the assertion that reading the ‘after’ to mean precisely that i.e. ‘after’ would create a ‘mind boggling’ situation in which the country existed without Parliament. This is not 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 previously has continued to be in office without a ParliamentThe Constitution, in fact, specifically allows for Parliament to be ‘prorogued’  (delayed) for periods of as much as 180 days,[1] and the power to prorogue Parliament for such an extended period  lies with the President under the current constitution.
  2. 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 judgment is correct, the Chief Justice did not avert to some very important facts that may make it impossible for the President to comply with the 31 July deadline:

  1. 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. This means that the President may 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.

 


[1] Section 62(2) of the Constitution.

This article was adopted from an opinion piece written by Derek Matyszak. To read more please folow this link on the RAU Website