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Jealousy Mbizvo Mawarire v Robert Gabriel Mugabe N.O. & 4 Ors
CCZ 1/13CCZ 1/132013
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REPORTABLE (1)
Judgment No. CCZ 1/13
Const. Application No. 146/2013
JEALOUSY MBIZVO MAWARIRE
v
(1) ROBERT GABRIEL MUGABE N.O.
(2) MORGAN RICHARD TSVANGIRAI N.O.
(3) ARTHUR GUSENI OLIVER MUTAMBARA N.O.
(4) WELSHMAN NCUBE
(5) THE ATTORNEY-GENERAL
CONSTITUTIONAL COURT OF ZIMBABWE
CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GARWE JA, GOWORA JA,
PATEL JA, HLATSHWAYO JA, CHIWESHE AJA & GUVAVA AJA
HARARE, MAY 24 & 31, 2013
J Mandizha, for the applicant
T Hussein, for the first respondent
Adv Uriri, for the second respondent
Adv T. Mpofu, for the fourth respondent
No appearance for the third and fifth respondents
CHIDYAUSIKU CJ: This is an application brought under s 24(1) of
the Constitution of Zimbabwe (hereinafter “the Constitution”) on the basis that the
applicant’s rights enshrined in ss 18(1) and 18(1a) have been contravened.
2 CCZ 1/13
The Parties
The applicant is a citizen of Zimbabwe domiciled in this country and has always
regarded this country as his only and permanent home. He is a registered voter in Zaka
East Parliamentary Constituency and also a member of the non-governmental
organisation, the Centre for Election Democracy in Southern Africa, based in Harare.
The first respondent is the President of Zimbabwe, Robert Gabriel Mugabe, who
is cited in his official capacity and as the office-bearer responsible for fixing the date for
Parliamentary, Presidential and local authority elections (hereinafter called “the
harmonised elections”). He is also cited in his capacity as a principal of the Inter-Party
Political Agreement (commonly referred to as the Global Political Agreement (“GPA”))
between his political party, the Zimbabwe African National Union (Patriotic Front)
("ZANU-PF") and the two formations of the Movement for Democratic Change
("MDC"), referred to in Schedule 8 to the Constitution.
The second respondent is Morgan Richard Tsvangirai, who has been cited in his
capacity as the Prime Minister of Zimbabwe, who also is a signatory to the “GPA”,
representing his formation of the MDC.
The third respondent is Arthur Guseni Oliver Mutambara, who has been cited as
the Deputy Prime Minister of Zimbabwe and also due to the fact that he is a signatory to
the “GPA”.
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The fourth respondent is Welshman Ncube, a Minister in Government and cited
herein in his capacity as the representative of the other formation of the MDC, which
organisation is a party to the GPA and is represented in the current coalition government.
The fifth respondent is the Attorney-General, who has been drawn into these
proceedings in view of their constitutional nature and in his capacity as the principal legal
advisor to the Government.
Background
On 2 May 2013 the applicant issued an urgent Court application against the above
five respondents. Before any opposition was filed to the court application, the applicant
was, on 6 May 2013, directed by the Registrar of the Supreme Court of Zimbabwe to file
a separate urgent Chamber application seeking leave for the urgent hearing of his Court
application, if such was his wish.
The application proceeded to do so in case Number SC 157/2013. This urgent
Chamber application was subsequently heard on 15 May 2013. On 17 May 2013 the
order sought by the applicant in the urgent Chamber application was granted.
The principal application was opposed by the first, second and fourth respondents.
The applicant subsequently filed a replying affidavit as well as a notice of an amendment
of the draft order to his principal application.
The amended order sought is as follows:
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"(1) The First Respondent be and is hereby directed to forthwith proclaim an
election date for a Presidential election, general election and elections for
members of the governing bodies of local authorities in terms of section
58(1) of the Constitution of Zimbabwe.
(2) The elections referred to in paragraph 1 hereof shall be conducted no later
than the 30th day of June 2013.
ALTERNATIVELY
The elections referred to above shall be conducted no later than (the) 25 th
day of July 2013.
(3) Any party (parties) who oppose(s) this application shall bear the costs of
this suit jointly and severally, the one paying the other to be absolved."
Read together, the papers filed of record seem to pose the following as issues
which fall for determination -
(a) Whether the applicant has locus standi to approach this Court in terms of
s 24(1) of the Constitution of Zimbabwe;
(b) When do harmonised general elections fall due in terms of the laws of
Zimbabwe?
(c) Whether the applicant has made out a case for the order sought.
Each issue will now be dealt with in turn.
Whether the applicant has locus standi to approach the Supreme Court in terms of
s 24 (1) of the Constitution
The applicant avers in his founding affidavit that his application is premised on
s 24 (1) of the Constitution, which provides as follows:
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“If any person alleges that the Declaration of Rights has been, is being or is likely
to be contravened in relation to him … then without prejudice to any other action
with respect to the same matter which is lawfully available, that person … may
apply to the Supreme Court for redress.”
Essentially, the applicant contends that his right to the protection of the law in
terms of s 18(1) of the Constitution has been, is being and is likely to continue being
violated. He asserts that the failure by the first respondent to fix the date for the holding
of Presidential, Parliamentary and local government elections when, at law, according to
him, the said elections are looming and are now due, violates his right to the protection of
the law. He further claims protection of the law as a person duly entitled to vote, with a
vested right to vote in an election at a stipulated time.
He then proceeds to demonstrate his fears of the real or at least perceived
violation of his Constitutional rights, as follows:
“The first respondent for reasons that I am not clear about, has not carried out his
functions in fixing a date for the elections, even as the expiry of Parliament looms
dangerously close. His inaction will lead to a state where Zimbabwe may, in
fact, run unconstitutionally. The misleading signals that have been sent by some
of the respondents cited herein have been the cause for great concern and may be
an indication, coupled with (the) first respondent’s inaction, that come June 29,
2013, a general election will not have been called, and Zimbabwe will be
hobbling along illegally, without a Parliament.
No interpretation whatsoever of the Constitution could ever validate the existence
of a situation of the State without the legislative arm of Government. Such an
unprecedented situation would be a crippling negation of a fundamental tenet of
our democracy which is a sine qua non of our constitutional order.”
The applicant further bases his locus standi on s 18(1a) of the Constitution which,
together with s 18(1), states as follows:
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"18 Provisions to secure protection of law
(1) Subject to the provisions of this Constitution, every person is entitled
to the protection of the law.
[Subsection amended by section 3 of Act No. 4 of 1993 (Amendment No. 12)]
(1a) Every public officer has a duty towards every person in Zimbabwe to
exercise his or her functions as a public officer in accordance with the law and to
observe and uphold the rule of law.
[Subsection inserted by section 4 of Act No. 1 of 2009 (Amendment No. 19)]."
A “public officer” is defined as “a person holding or acting in any public office” and
“public office” is defined as “a paid office in the service of the State".
Thus, s 18(1a) clearly confers a right on any and every Zimbabwean who is
affected by a failure to uphold the law to approach this Court in terms of s 24(1).
The objections by the second and fourth respondents to the applicant’s right to
approach this Court for relief are based on a restrictive approach to locus standi in the
pre-2009 period and a failure to appreciate that the 2009 Amendment No.19 has thrown
wide open the right to seek relief in terms of s 24(1) to any and every citizen who is
affected by a failure by a public officer to uphold the law. Hence, the applicant states his
apprehension of likely infringement of his rights under s 18(1a) as follows:
“I also persist that the absence of Parliament is not only unconstitutional, and thus
lead to a rule by decree, but will also lead to a paralysis in governance. In
addition, the fact of the fourth respondent’s insistence that elections can be held as
late as 30 October 2013, coupled with his insistence that the Parliamentary
vacuum that will eventuate between 29 June 2013 and 30 October 2013 is legal
amounts to a violation, or likely violation, of my fundaments rights under the Bill
of Rights.”
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The pre-2009 discourse pertaining to the need to establish a right infringed or
likely to be contravened under Chapter 3 before having recourse to s 24(1) is captured in
the following opinion in United Parties v Minister of Justice, Legal and Parliamentary
Affairs and Ors 1997 (2) ZLR 254 (S):
“Much turns on the meaning of the phrase 'likely to be contravened'. Certainly, it
does not embrace any fanciful or remote prospect of the Declaration of Rights
being contravened. Nor does it refer to the Declaration of Rights being liable to
contravention … Rather it means a reasonable probability of such a
contravention occurring.”
In Tsvangirai v Registrar General and Ors 2002 (1) ZLR 268 (S) the following was said:
“The first observation to be made is that a bald, unsubstantiated allegation will not
satisfy the requirements of the section. The applicant must aver in his founding
affidavit facts, which if proved would establish that a fundamental right enshrined
in the Declaration of Rights has been contravened in respect of himself …”
(p 25G–271a) .
And:
“Although in the founding affidavit the applicant did not specify which section of
the Declaration of Rights was contravened …. I do not think that the failure to do
so is fatal (especially as) the omission was remedied by the heads of argument
filed by counsel for the applicant ….” (p 276E-F).
See also: Catholic Commission for Justice and Peace in Zimbabwe v Attorney General
and Ors 1993 (1) ZLR 242 (S), and Law Society of Zimbabwe and Ors v Minister of
Finance 1999 (2) ZLR 213 (S)
Even under the pre-2009 requirements, it appears to me that the applicant is
entitled to approach this Court for relief. Certainly, this Court does not expect to appear
before it only those who are dripping with the blood of the actual infringement of their
rights or those who are shivering incoherently with the fear of the impending threat which
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has actually engulfed them. This Court will entertain even those who calmly perceive a
looming infringement and issue a declaration or appropriate order to stave the threat,
more so under the liberal post-2009 requirements.
(b) When do harmonised general elections become due?
It is common cause amongst all the parties that Parliament shall stand dissolved,
by the effluxion of time, on 29 June 2013. Whilst the papers before this Court are
voluminous and at times unnecessarily argumentative, the issue before this Court is in
fact a simple one, which can be reduced to one question - “When, after the accepted
dissolution of Parliament by the effluxion of time in terms of the Constitution should the
harmonised elections be held?"
The response to this rather simple and straightforward question has elicited
contradictory responses from the second and fourth respondents on the one hand, and the
applicant, on the other. The responses from the second and fourth respondents also show
a serious divergence of opinion between them.
According to the second respondent, who is the Prime Minister and an important part
of the Executive:
“What is plain from section 58 (1) of the Constitution of Zimbabwe, as read with
other relevant sections, is the fact that if the terms of Parliament, local
government authorities, and of the President expire on 29 June 2013 through the
natural passage of time (as opposed to induced dissolution or prorogation)
elections must be conducted within four (4) months of the automatic dissolution
of Parliament. (emphasis is added)”
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The fourth respondent, who himself is a Minister of Government and leader of a
party to the Global Political Agreement, takes the following similar position when he
states:
‘Alternatively, if the President does not dissolve Parliament and allows it to
automatically dissolve by operation of law on the last day of its five year term, in
that event the President must cause an election to be held within four months of
the date of the automatic dissolution of Parliament.” (emphasis added)
He then goes on to say:
“The Constitution permits that an election be held anytime within four months
after the dissolution of Parliament by operation of law at the expiration of its five
year term and hence that Constitution, by so providing, contemplates and allows
that there may be no Parliament between its automatic dissolution and the
holding of an election within four months of that dissolution.” (emphasis
added)
The first respondent disagrees with the interpretation by the second and fourth
respondents, saying it is not supported by the Constitution or the canons that govern its
interpretation. Instead, the first respondent agrees with the interpretation placed by the
applicant on ss 58 and 63 of the Constitution.
Section 58 (1) simply states:
"(1) A general election and elections for members of 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.”
Now, it is clear that s 58(1), read in its ordinary sense, deals with the timing of
elections or the fixing of dates for elections by proclamation. If one were to pose the
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question “when are harmonised general elections to be held?” and seek an answer from
the above quoted provisions of s 58(1), two possible answers emerge, depending on
punctuation and emphasis and are juxtaposed below as READING “A” and “B”:
READING “A”
"PART 6
Elections and Sessions
58 Elections
(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."
READING “B”
"PART 6
Elections and Sessions
58 Elections
(1) 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:
i. 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."
There could be any number of other variations the section 58(1) text can be broken
into, but the two scenarios above will suffice for the purpose of this case. Both Reading
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“A” and Reading “B” answer to the question when elections are to be held but with one
putting the emphasis on the preposition “on” and the other on “after”. Both
interpretations are compelling. Adopting one interpretation or the other results in starkly
different outcomes. In one case elections must be held within the life of Parliament. In
the other case, elections may be held up to four months after the dissolution of
Parliament.
A Court faced with competing possible interpretations of a constitutional
provision must call into aid principles or canons of construction. In this regard
FIELDSEND CJ had this to say in Hewlett v Minister of Finance 1981 ZLR 571:
“… in general the principles governing the interpretation of a Constitution are
basically no different from those governing the interpretation of any other
legislation. It is necessary to look to the words used and to deduce from them
what any particular section, phrase or word means, having regard to the overall
context in which it appears.”
Accordingly, s 58(1) must be examined, not in isolation, but having regard to the
overall context in which it appears. In this regard it is important to immediately quote
s 63 referred to in this provision, emphasising the key subss 63(7) and 63(4):
"63 Prorogation or dissolution
(1) The President may at any time prorogue Parliament.
[Subsection substituted by section 6 of Act No. 23 of 1987 (Amendment No. 7)]
(2) Subject to the provisions of this Constitution, the President may at any time
dissolve Parliament.
[Subsection substituted by section 6 of Act No. 23 of 1987 (Amendment No. 7)]
(3) …
[Subsection repealed by section 6 of Act No. 23 of 1987 (Amendment No. 7)]
12 CCZ 1/13
(4) Parliament, unless sooner dissolved, shall last for five years, which period
shall be deemed to commence on the day the person elected as President enters
office in terms of section 28(5) after an election referred to in section 28(3)(a),
and shall then stand dissolved:
Provided that, where the period referred to in this subsection is extended
under subsection (5) or (6), Parliament, unless sooner dissolved, shall stand
dissolved on the expiration of that extended period.
[Subsection inserted by section 14 of Act No. 11 of 2007 (Amendment No. 18)]
(5) At any time when Zimbabwe is at war, Parliament may from time to time
extend the period specified in subsection (4) by not more than one year at a time:
Provided that such period shall not be extended under this subsection for more
than five years.
(6) At any time when there is in effect a declaration under section 31J(1),
Parliament may from time to time extend the period specified in subsection (4) by not
more than six months at a time:
Provided that such period shall not be extended under this subsection for more
than one year.
[Subsection amended by section 26 of Act No. 23 of 1987 (Amendment No. 7)]
(7) Subject to the provisions of subsection (4), any prorogation or dissolution
of Parliament shall be by proclamation in the Gazette and, in the case of a
dissolution, shall take effect from the day preceding the day or first day, as the
case may be, fixed by proclamation in accordance with section 58(1) for the
holding of a general election.
(8) On the dissolution of Parliament all proceedings pending at the time shall be
terminated and accordingly every Bill, motion, petition or other business shall lapse."
(emphasis added)
Although on the face of it ss 58 and 63 deal with distinct but related constitutional
matters - the fixing of dates for elections on the one hand and the life of Parliament on the
other - the interrelatedness of these matters creates a maze of back and forth cross-
referencing between s 58(1) and ss 63(4) and 63(7). These provisions are also subject to
stipulations in the Constitution itself and the Electoral Act especially with regard to time
13 CCZ 1/13
limits. However, there are some conclusions that can be teased out of this maze to aid
the interpretation of the provision in question -
a) There must be a proclamation fixing the dates for elections which is issued by
the President in the Gazette according to ss 58(1) and 63(7).
b) Section 63(7) is subjected to the provisions in s 63(4) in the sense that the
President may not dissolve Parliament and fix dates which fall outside the life
of Parliament. In other words, elections following a Presidential dissolution
of Parliament must be held before the expiry of the life of that Parliament.
There are other provisions in s 64(4) which might have necessitated the
subjection of s 63(7) to it, viz. that dissolution of Parliament following expiry
of its extended period is automatic, whereas s 63(7) requires all other
dissolutions to be by proclamation.
c) The fixing of election dates must take into account the mandatory time limits
set out in the Constitution and the Electoral Law.
From the above conclusions, one can now pose a number of useful questions and
try to answer them. What is this proclamation that is required for both the Presidential
and the automatic dissolution of Parliament? What is its purpose? From a common
sense position one could say a proclamation is issued in advance, giving a period of
notice and time prior to the Presidential or automatic dissolution in order to afford the
electoral authorities and the public time to prepare for the elections. That appears to also
coincide with the legal requirements teased above. However, to get a real life "feel" of
14 CCZ 1/13
this phenomenon called "proclamation" I dug up Statutory Instrument 7A of 2008, which,
of course, the Court is perfectly entitled to take judicial notice of. It was issued on
24 January 2008 dissolving Parliament “with effect from midnight, the 28 th March,
2008”, thus giving the electoral authorities and the public slightly over two months to
prepare for the elections. In that case, the night of dissolution was perfectly followed by
the day or days of elections as stipulated in s 63(7). The proclamation goes on to fix the
dates, places and times of the sitting of the nomination courts and the presiding officials
thereof throughout the country for Presidential, Parliamentary and local government
elections.
This proclamation was issued by the President using his discretion to dissolve
Parliament and call for elections in terms of s 63(7). It is important to note that the
proclamation is prospective, not retrospective, pointing to a date in future when
Parliament will stand dissolved and complying with all statutory time limits. Since the
date for the automatic end of the life of Parliament is known in advance, it would be
perfectly feasible for a President to anticipate such a date and issue a similar
proclamation announcing that Parliament shall stand dissolved by midnight of that day,
followed by elections on the following day or days and complying with all statutory time
limits. Not only would it be feasible, but, in my view, it would be the proper,
constitutional and legal thing to do. In fact, the question may be asked - since the date
of automatic dissolution is known in advance, what is the purpose of granting the
President an additional four months within which to proclaim the dates for elections after
dissolution of Parliament? Is it to shield that decision from Parliamentary scrutiny or to
15 CCZ 1/13
reward the President for having allowed Parliament to run its full course, by granting the
Executive four months to rule by decree? The mind boggles at this strange effect of
adopting Reading “B” of s 58(1).
The second scenario of interpreting s 58(1) also implies that the President must
wait until the life of Parliament would have expired in terms of s 63(4) and then issue a
proclamation recognising that fact and fixing dates within four months of the event. The
expiry of the life of Parliament would have passed silently without notice to all concerned
but with a dramatic effect of creating a deformed State without Parliament for up to four
months. As would be shown below, this would lead to an absurdity and glaring
anomalies.
There are two approaches open to a Court faced with apparent absurdities in the
construction of statutes - the narrow and the wider approach.
The narrow approach was articulated in The Queen v Judge of the City of London
Court [1892] QBD 273 by LORD ESHER as follows:
“If the words of an Act are clear, you must follow them, even though they lead to
a manifest absurdity. The Court has nothing to do with the question whether the
legislature has committed an absurdity. In my opinion the rule has always been
this – if the words of an Act admit of two interpretations, then they are not clear;
and if one interpretation leads to an absurdity, and the other does not, the Court
will conclude the legislature did not intend to lead to an absurdity, and will adopt
the other interpretation”
16 CCZ 1/13
Under the narrow approach, the Court chooses between the two possible interpretations
the one which does not lead to an absurdity. In this case, it would be the first
interpretation or Reading “A” of s 58(1).
In Venter v Rex 1906 TS 910 at pp 914-915 INNES C.J. expressed the wider
approach, thus:
“That being so, it appears to me that the principle we should adopt may be
expressed somewhat in this way – that when to give the plain words of the statute
their ordinary meaning would lead to absurdity so glaring that it could never have
been contemplated by the legislature, or where it would lead to a result contrary to
the intention of the legislature, as shown by the context or by such other
considerations as the Court is justified in taking into account, the Court may
depart from the ordinary effect of the words to the extent necessary to remove the
absurdity and to give effect to the true intention of the legislature.”
According to the “wider approach” the Court has a broad discretion in removing an
absurdity being guided ultimately by the intention of the Legislature or in constitutional
terms by the intention of the framers of the supreme law. Once an ambiguity or
absurdity has been established, it would appear that the proper approach to adopt would
be the wider one, where the Court calls into aid historical, schematic, teleological and
purposive approaches to interpretation.
In the case of Buchanan & Co v Babco Ltd (C.A.) [1977] QBD 208 at 213
LORD DENNING followed precisely this method of interpretation long adopted by the
European Court of Justice at Luxembourg, thus:
“They adopt a method which they call in English by strange words – at any rate
they were strange to me – the 'schematic and teleological' method of
interpretation. It is not really so alarming as it sounds. All it means is that the
judges do not go by the literal meaning of the words or by the grammatical
structure of the sentence. They go by the design or purpose which lies behind it.
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When they come upon a situation which is to their minds within the spirit – but
not the letter - of the legislation, they solve the problem by looking at the design
and purpose of the legislation – at the effect which it was sought to achieve.
They then interpret the legislation so as to achieve the desired effect. This means
that they fill in gaps, quite unashamedly, without hesitation. They ask simply:
what is the sensible way of dealing with this situation so as to give effect to the
presumed purpose of the legislation? To our eyes – shortsighted by tradition – it
is legislation, pure and simple. But to their eyes, it is fulfilling the true role of the
courts. They are giving effect to what the legislature intended, or may be
presumed to have intended. I see nothing wrong with this. Quite the contrary.”
If the framers of the Constitution wanted Zimbabwe to function without a
Parliament for four months as suggested by the second and fourth respondents, they
surely would have said so in clear and explicit terms and they would not have left this to
speculation and interpretation. The Constitution itself states emphatically in s 52:
“Provided that … no law shall be deemed to amend, add to or repeal any
provision of this Constitution unless it does so in express terms.”
Therefore, the only interpretation that can be given to this section is one that
favours constitutionalism. It is common cause that the current Constitution is based on
the fundamental principles of separation of powers between the three arms of State - the
Executive, the Judiciary and the Legislature. This principle is entrenched in the
Constitution in the various sections which state in peremptory terms that there shall be a
President, a Parliament and a Judiciary. Nowhere in the Constitution is there an excuse
to function without any one of these branches for an extended period of time. Whatever
exceptions are dictated by transitional imperatives of the going out and coming in of
governments, these are always kept at the minimum possible. In fact, so important are
the tripartite pillars of State that even in a time of emergency or war, these three
institutions are preserved. See subss 63 (5) and (6).
18 CCZ 1/13
The principle of constitutionalism which we referred to earlier, is embodied in s 3
of the Constitution which states:
“This Constitution is the supreme law of Zimbabwe and if any other law is
inconsistent with this Constitution that other law shall, to the extent of the
inconsistency, be void.”
If one applies both the doctrine of separation of powers and constitutionalism, it is
inconceivable that an interpretation that permits or allows for any extended period
without one or other arms of State, in this case Parliament, can be sustainable. To exist
too long without a Parliament would be tantamount to shredding the Constitution and
inviting a state of lawlessness and disorder. It would, with respect, be tantamount to an
“annihilation” of the Constitution, in the words of MALABA JA (as he then was) in
Mike Campbell (Pvt) Ltd and Another v Minister of Lands and Another 2008 (1) ZLR 17
(S).
If s 58 is a repeal or amendment of the peremptory requirement that “there shall
be a Parliament", it should have said so explicitly. It does not do this.
It is also instructive to note that in terms of s 158 of the new in-coming
Constitution the timing of elections is such that they must be held before the expiry of the
life of Parliament, thus:
"158 Timing of Elections
(1) A general election must be held so that polling takes place not more
than –
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(a) thirty days before the expiry of the five-year period specified in
section 143." (emphasis added)
The submission that the mischief of rule by decree consequent upon no elections
being held by 29 June 2013 is obviated by the continuation in office of both the President
and Cabinet in terms of s 29(1) of the Constitution totally misses the point that what is at
issue is rule by the Executive in the absence of the checks and balances of a Parliament.
It matters not whether the rule by decree is that of a single individual or that of a group,
such as a Cabinet. The purpose of this section is to allow a smooth handover between
the retiring and the incoming Executive in the shortest possible time. Its existence is
also further proof of the need to ensure that the period between the dissolution of one
Parliament and the inauguration of the next is as short as possible.
Furthermore, the applicant is correct in submitting that the fourth respondent fails
to appreciate that the overarching philosophy in s 31E(2) is in fact constitutionalism and
not proof that governance without Parliament is acceptable. The section is an
exhortation to anyone appointed as Vice-President, Minister or Deputy Minister (from
outside Parliament) to become members of Parliament within three months. The only
time when such officials are allowed to exceed those three months is when during that
period Parliament is dissolved (thus frustrating him or her from becoming a member).
Only then can the period be extended to “until Parliament first meets after dissolution”.
In fact, this provision presupposes the prior existence of Parliament and not its wholesale
absence and caters for a few desired members of the Executive who may not have made it
to Parliament.
20 CCZ 1/13
It is also instructive to have recourse to the history of this provision. The original
provision stated that the terms of office of Vice-Presidents, Ministers or Deputy Ministers
terminated on their ceasing to be members of Parliament, thus emphasising the centrality
of an extant Parliament in the composition and functioning of the Executive in a
democratic dispensation.
Section 31E reads:
31E Tenure of office of Vice-Presidents, Ministers and Deputy Ministers
(1) The office of a Vice-President, Minister or Deputy Minister shall
become vacant –
(a) if the President removes him from office; or
(b) if he resigns his office by notice in writing addressed and
delivered to the President; or
(c) upon the assumption of office of a new President.
[Subsection amended by section 9 of Act No. 15 of 1990 (Amendment No. 10)]
(2) No person shall hold office as Vice-President, Minister or Deputy
Minister for longer than three months unless he is a member of Parliament:
Provided that if during that period Parliament is dissolved, he may
continue to hold such office without being a member of Parliament until
Parliament first meets after the dissolution.
[Subsection substituted by section 2 of Act No. 31 of 1989 (Amendment No. 9)]"
In the context of the GPA-based Government of National Unity (GNU) – not to
be confused with the animal gnu with an ox-like head and a tufted tail and ironically also
an inhabitant of the Savannas of Africa - whose existence is premised on political parties
represented in Parliament the question arises as to what the justification constitutionally
of its continued existence becomes once Parliament is no more. It becomes a
21 CCZ 1/13
Government made up of political parties previously represented in Parliament! And
what would that say to other political parties patiently waiting for their chances at the
polls?
In conclusion therefore, the proper construction of s 58(1) is that election dates
should be fixed and notified whether pursuant to Presidential dissolution or automatic
dissolution of Parliament in such a way that elections are held within the life of
Parliament or a day/days immediately following its dissolution. The setting of these
dates has to take into account the requirements of the Constitution and the Electoral Act,
which stipulate a period of at least forty-four days between proclamation and actual
holding of elections. In terms of the provisions of the new Constitution, which came into
force on publication day, s 157(3), the minimum period is forty-four days, thus:
"157(3) The Electoral Law must provide for the nomination of
candidates in any election to take place at least fourteen days after the publication
of the proclamation calling for that election. Polling must take place at least
thirty days after the nomination of candidates.”
(c) Whether the applicant has made out a case for the Order sought
The essence of the applicant’s case is that the first respondent has failed to fix and
proclaim a date for Presidential, Parliamentary and local government elections as
required by s 58(1) of the Constitution and failure by the first respondent to do so is
unconstitutional in general and in particular is in violation of the applicant’s rights as a
voter and his legitimate expectation of protection of the law as enshrined in subss 18 (1)
and (1a) of the Constitution.
22 CCZ 1/13
As can be deduced from what is concluded above, the first respondent is already
out of time in fixing and proclaiming dates for the harmonised general elections to be
held before the expiry of the life of the current Parliament. The applicant’s rights as
already stated above have already been infringed and continue to be violated with each
passing day. The applicant is entitled to the declaration of such infringement and an
order correcting or rectifying as far as is possible such infringement. See Commercial
Farmers’ Union v Minister of Lands & Ors 2000 (2) ZLR 469 at 486-487.
When the first respondent failed to fix and proclaim a date for Presidential,
Parliamentary and local government elections, as required by s 58(1) of the Constitution,
to enable elections to be held on the dissolution of Parliament on 29 June 2013, not only
did he violate the applicant's fundamental right as protected by s 18 of the Constitution,
he thereby derailed the electoral process. From then onwards, the rule of law as regards
the electoral process was no longer extant. It is imperative that the rule of law be
restored to the electoral process and the applicant be afforded some relief.
The first respondent has placed himself in a serious legal quandary or predicament
by his failure to issue the said proclamation timeously. The first respondent cannot
remedy the situation by issuing the proclamation for elections to be held by 29 June 2013,
as doing so will inevitably contravene the time lines set out in s 38 of the Electoral Act.
Prospective Parliamentary candidates are entitled, in terms of s 38 of the Electoral Act, to
fourteen days to organise their nominations and thirty days to campaign before the date of
the elections. Thus, affixing the date of the elections now in terms of s 58(1) of the
23 CCZ 1/13
Constitution in anticipation of the dissolution of Parliament on 29 June 2013 will have
the effect of violating the fundamental right of aspiring Parliamentary candidates,
entitling them to bring similar applications to that of the applicant.
Apart from this, the coming into operation of the new Constitution of Zimbabwe
has further complicated the situation. The new Constitution has introduced new time
lines and necessitated amendments to the Electoral Law, making the immediate issuance
of a proclamation fixing the date for harmonised elections on the dissolution of
Parliament on 29 June 2013 legally impossible.
The Court, in my view, is compelled to take into account the exigencies of this
situation in the order that it makes. Thus compliance with the Court order must not of
necessity compel the first respondent to contravene another electoral provision.
The applicant must have appreciated the first respondent's legal predicament. In
his draft order, the applicant asked for the immediate issuance of a proclamation fixing
the date of the harmonised elections upon the dissolution of Parliament on 29 June 2013.
In the alternative, the applicant asked for the issuance of a proclamation forthwith setting
the date of the harmonised elections by no later than 25 July 2013. I have no doubt that
the applicant's alternative relief is out of the realisation and appreciation of the first
respondent's legal predicament.
24 CCZ 1/13
I am inclined to grant the alternative relief sought by the applicant and add six
days to 25 July 2013 to compensate for the period between the hearing of this appeal and
the handing down of this judgment. The first respondent, while not explicitly consenting
to the alternative relief, indicated that he had no objection to such relief. The main
litigants in this matter, namely the applicant and the first respondent, are accordingly in
agreement over the alternative relief. This relief also accords with the Court's desire to
issue an order that will help restore legality to the electoral process as quickly as possible.
(d) Costs
The applicant has won his case and costs should follow the result. As against the
first respondent, the first respondent literally consented to the alternative relief sought by
the applicant. Ordinarily a respondent who takes this attitude will not be ordered to pay
the costs. However, in this case it is the conduct of the first respondent in failing to
timeously fix a date for harmonised elections that has compelled the applicant to
approach the Court. Apart from this, the first respondent represents the State, and in my
view it is only fair and just that the State should pay the costs of a public spirited citizen
like the applicant, who undertook the responsibility of doing something about an electoral
process that has gone astray. The second and fourth respondents opposed the application
on the basis of an interpretation of s 58(1) of the Constitution which this Court has found
to be permissible although erroneous. In my view, it would be unjust to mulct the
second and fourth respondents in costs. The second and fourth respondents should
simply bear their own costs.
25 CCZ 1/13
It is my hope that, although the order of the Court is not against the second and
fourth respondents, they will use their good offices to assist the first respondent to restore
the rule of law to the electoral process.
(e) Order
In the result, the Court makes the following order -
1. It is declared that the harmonised general elections in terms of s 58(1) of
the Constitution of Zimbabwe are due upon the dissolution of Parliament
on 29 June 2013. However, due to the first respondent's failure to issue a
proclamation fixing the date for the harmonised elections timeously it is
no longer legally possible to hold the harmonised elections on that date.
2. It is declared that the failure by the first respondent to fix and proclaim
date(s) for harmonised general elections to take place by 29 June 2013 is a
violation of the first respondent’s constitutional duty towards the applicant
to exercise his functions as a public officer in accordance with the law and
to observe and uphold the rule of law in terms of s 18(1a) of the
Constitution.
3. It is further declared that by failing to act as stated in para 2 above, the
first respondent has violated the applicant’s rights as a voter and his
legitimate expectation of protection of the law entrenched in s 18(1) of the
Constitution.
26 CCZ 1/13
4. Accordingly, the first respondent be and is hereby ordered and directed to
proclaim as soon as possible a date(s) for the holding of Presidential
election, general election and elections for members of governing bodies
of local authorities in terms of s 58 (1) of the Constitution of Zimbabwe,
which elections should take place by no later than 31 July 2013.
5. The first respondent shall bear the costs of the applicant.
ZIYAMBI JA: I agree
GARWE JA: I agree
GOWORA JA: I agree
HLATSHWAYO JA: I agree
CHIWESHE AJA: I agree
GUVAVA AJA: I agree
27 CCZ 1/13
MALABA DCJ: I have read the judgment prepared by the learned Chief
Justice. I do not, with respect, agree with it for reasons I proceed to set out.
The applicant approached the court seeking redress in terms of s 24(1) of
the former Constitution. I say the former Constitution because Zimbabwe has a new
Constitution. Some of the provisions of the new Constitution came into effect on 22 May
2013 which is the publication day. Section 1 of Part 1 of the Sixth Schedule of the new
Constitution provides that the “first elections” shall be held in terms of the new
Constitution. The “first elections” is defined in s 1 of Part 1 of the Sixth Schedule to
mean:
“(a) the first election for the office of the President under this Constitution;
(b) the first general election of members of Parliament under this Constitution;
and
(c) the first elections of governing bodies of provincial and metropolitan councils
and local authorities;
held after the publication day.”
The elections in relation to which the applicant sought redress in terms of
s 24(1) of the former Constitution have become the “first elections” as they will be held
after the publication day. The effect of the provisions of the new Constitution which
came into operation together with express provisions of the Sixth Schedule on matters
relating to the “first elections” are of greatest importance in the determination of the
question raised by the application.
28 CCZ 1/13
The question for determination is whether the interpretation by the
applicant of s 58(1) of the former Constitution on the timing of the “first elections” which
he wants the court to apply in deciding whether the first respondent (the President) has
violated his fundamental right to the protection of the law is correct. In my view the clear
and unambiguous provisions of s 58(1) of the former Constitution as read with the other
relevant sections admit of nothing other than their ordinary grammatical meaning.
The applicant has turned the clear and unambiguous language of the
provisions into a subject-matter of a question of interpretation which has unfortunately
plunged the court into irreconcilable differences of opinion. I, however, refuse to have
wool cast over the inner eye of my mind on this matter.
The relevant provisions of the former Constitution are these:
“Section 58(1) Elections
(1) 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.”
“63 Prorogation or dissolution
(1) The President may at any time prorogue Parliament.
(2) Subject to the provisions of this Constitution, the President may at anytime
dissolve Parliament.
(3) ...
(4) Parliament, unless sooner dissolved, shall last for five years, which period
shall be deemed to commence on the day the person elected as President enters
office in terms of section 28(5) after an election referred to in section 28(3)(a),
and shall then stand dissolved:
(5) ....
29 CCZ 1/13
(6) ...
(7) Subject to the provisions of subsection(4), any prorogation or dissolution
of Parliament shall be by proclamation in the Gazette and, in the case of a
dissolution, shall take effect from the day preceding the day or first day, as the
case may be, fixed by proclamation in accordance with section 58(1) for the
holding of a general election.”
According to the interpretation of s 58(1) which the applicant wants the
court to apply, the provision imposes on the President a duty to fix 29 June 2013 or a day
after as the date of the first elections. He contends that s 58(1) requires the President to
issue a proclamation fixing the date of the first elections within four months before the
date of automatic dissolution of Parliament. It is common cause that, barring any
dissolution by proclamation, the Parliamentary term of five years will come to an end at
midnight on 29 June 2013.
It is common cause that up until the hearing of the application on 24 May,
the President had not fixed the date of the first elections. The applicant alleges that he
has a right to the performance by the President of his legal duty to fix 29 June 2013 as the
date of the first elections. He says his corresponding right derives from the fact that he is
a registered voter. As a result of the alleged failure by the President to fix 29 June 2013
as the date of the first elections, the applicant alleges that his right to the protection of the
law has been violated.
I have no difficulty in recognising in the applicant the right to approach
the court in terms of s 24(1) of the former Constitution seeking the relief of an order of
mandamus against the President. The principle on locus standi is after all that it is better
30 CCZ 1/13
to let people have access to the fountain of justice where they fail for the reasons of their
folly than have them blame the gate keepers. An order of mandamus is a means of relief
which the court in the exercise of its wide discretionary powers under s 175(6) (b) of the
new Constitution can, in appropriate cases, grant.
In determining the question raised by the application I bear in mind the
fact that elections are crucial to democracy. This is particularly so at this stage of the
history of our country. The first elections which are due to be held under the new
Constitution are bound to test the readiness of Zimbabweans to embrace the change
embodied in the new Constitution. The leadership that is going to emerge elected will
have to embrace the new values prescribed by the new Constitution. Choosing the
precise date to hold the first elections is therefore a matter of utmost importance to be
handled with the greatest care.
There is no doubt that s 58(1) of the former constitution grants power for
the fixing of the date of the first elections. For ease of understanding of the import of the
provisions, I have analysed them against a framework which looks at the nature of the
power, the repository, the contents, the conditions and restrictions on its exercise. The
answers to these questions determine the democratic quality of the first elections as they
depend on the guarantees that surround the different aspects of the choosing of the date of
the elections.
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Section 58(1) vests in the President discretionary power to fix a day or
days of the first elections by a proclamation published in the official Gazette. The use of
the word “may” is clearly indicative of the fact that the power conferred on the President
is of a discretionary nature. It means that the President can act on his own discretion or
judgment. It is not a power which is accompanied by a duty on the President to act in a
specified manner at a specified time.
In matters in which the President has discretion he may seek advice from
any quarter but he must discharge his duties to the best of his own judgment and ability.
The power is vested in the President but he has the freedom to decide when to act
provided he observes all the requisite conditions of the exercise of the power. So s 58(1)
as the source of the discretionary power defines the circumstances when the power may
be exercised not when it must be exercised.
There is in my view of the nature of the power conferred on the President
by s 58(1) no legal duty on him to fix 29 June 2013 or a day after as the date of the first
elections as suggested by the applicant.
This is not a case where the date of a general election following automatic
dissolution of Parliament is precisely determined in the Constitution. The date is left to
be chosen by the authority vested with the power to do so within a framework of time
determined by the Constitution. Within that time frame the authority is left with a fairly
large margin of appreciation in choosing the day or days in which the election will have
32 CCZ 1/13
to take place. In that regard the court has no power to dictate to the President when and
how he should exercise the discretion vested in him by the Constitution.
It is important that the repository of the discretionary power to fix the date
of the first elections is the President. He is a democratically elected authority. As he is
vested with the power to fix the date of the “first elections” in his capacity as the
President of the Republic, he is expected to take into account all relevant factors relating
to the proper conduct of the elections in the national interest. He does not in that capacity
act as a leader of a political party.
The content of the discretionary power is very clear. It is the fixing of a
day or days on which the first elections are to be held. The discretionary power is to be
exercised in respect of a specific matter. Which day or days the President chooses to fix
as the date or dates of the election is a matter strictly within his discretion.
The court cannot get involved in determining for the President the manner
in which he should exercise his discretion. It cannot tell the President which day or days
he should fix or that he was wrong in fixing a certain day. It is not the function of a court
of law to substitute its own wisdom and discretion for that of the person to whose
judgment a matter is entrusted by the law. Whilst a court can review a public officer’s
action for legality it cannot act as if it were the Executive.
33 CCZ 1/13
The real issue in this case arises because of the interpretation of the
conditions and restrictions imposed by the law on the exercise of the discretionary power
by the President. The first condition is of course not so controversial. It relates to the
form the exercise of the discretion should take. The President is required to give notice
to the public of the day or days he has fixed for the holding of the first elections in the
Gazette. Upon public notification, the date or dates fixed for the elections have legal
effect.
The fact that the manner by which the President is required to make
known to the public the result of the exercise of his discretion is by a proclamation
published in the Gazette means that it is an unconditional notification. It cannot be
conditional upon the President reserving for himself the right to dissolve Parliament by
proclamation. That would be the implication if the contention by the applicant that the
proclamation fixing the date of the first elections must be issued some four months before
the date of automatic dissolution of Parliament is accepted.
The next condition is one in respect to which the interpretation of s 58(1)
by the applicant has given rise to the question for determination. In my view s 58(1) is
clear. It gives the President the discretionary power to fix a day or days for the holding
of the first elections to fall within a period of four months calculated from the date of
occurrence of any of the events referred to in ss 63(4) and 63(7) of the former
Constitution. The date or dates fixed for the holding of the first elections must follow the
date of the happening of the event concerned.
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If the dissolution of Parliament is by a proclamation issued by the
President in terms of s 63(2) of the former Constitution the time within which the day or
days for the holding of the elections must be fixed starts running from the date of the
issuance of the proclamation. If the dissolution of Parliament is automatic as provided
for in s 63(4) the time within which the day or days for the holding of the elections
should be fixed starts to run from the date of the automatic dissolution.
It is generally accepted that in the absence of express provisions to the
contrary dissolution of Parliament is usually followed and not preceded by a
proclamation fixing the date of a general election. A general election is usually called
and polling dates fixed by a proclamation after and not before dissolution. I have no
doubt in my mind that the period of four months referred to in s 58(1) relates to what
should happen after the happening of either dissolution of Parliament by proclamation or
operation of law.
The contention by the applicant that the time limit of four months relates
to what the President should do before the date of automatic dissolution cannot be
correct. It ignores the word “after” in s 58(1). It also does not put any weight at all on
the words “or, as the case may be” in the section. According to the old legal maxim
“Parliament does not speak in vain”. These words must surely have been used in s 58(1)
for a purpose. The purpose is precisely to subject each type of dissolution to the same
mode of fixing the day or days for the holding of the elections.
35 CCZ 1/13
The words “or, as the case may be” mean that whichever of the two events
referred to in ss 36(4) and 63(7) occurs two things shall happen. The first consequence of
the occurrence of the event is the need for the President to decide when to exercise his
discretionary power and fix the date or dates of the election by issuing a proclamation.
The second consequence of the occurrence of the event is the commencement of the
running of the limitation period of four months referred to in s 58(1).
Whilst the two elements are the direct consequences of the issuance of a
proclamation dissolving Parliament or of the automatic dissolution of Parliament, there is
an additional restriction on the exercise by the President of the discretionary power which
applies to dissolution by proclamation only. The restriction is provided for in s 63(7).
The words “subject to the provisions of subs (4)” in s 63(7) emphasise the
additional restriction. They also emphasise the fact that there are elements which are
common to both methods of dissolution in so far as the direct consequences are
concerned. In other words whilst the time limit is applicable to both forms of dissolution,
the requirement that the dissolution shall take effect on the day preceding the first day of
polling in the elections does not apply to the automatic dissolution of Parliament in terms
of s 63(4).
It is important to understand the effect of s 63(7). The section must be
read together with ss 63(1) and (2). Whilst these sections provide for the power to
prorogue and dissolve Parliament respectively, they do not state the manner in which the
36 CCZ 1/13
power is to be exercised. Section 63(7) then provides that the power to prorogue or
dissolve Parliament shall be exercised by means of a proclamation published in the
Gazette. Where the proclamation dissolves Parliament as opposed to proroguing it
s 63(7) then goes on to prescribe the restriction therein contained.
Section 63(4) fixes the Parliamentary terms at five years. This is clearly
an upper limit to ensure regular accountability to the electorate. That principle is not
offended by a shorter term by dissolution of Parliament by proclamation. The purpose or
objective of accounting to the electorate is the same. The fixing of a day or days of the
holding of the elections facilitates accountability to the electorate in each case. Put
differently s 63(7) does not affect a situation where s 63(4) applies.
The contention that the President is under a duty to issue a proclamation
fixing the day or days of the election within a period of four months before the date of
automatic dissolution of Parliament is difficult to justify. It requires that the word “after”
in s 58(1) be ignored or expunged and in its place read the word “before”. On what event
would the proclamation fixing the date or dates of the elections be based except on itself.
The fact is that there is nothing in s 58(1) of the former Constitution which
imposes on the President an obligation to fix a day or days of the election to coincide
with the date of the end of the natural life of Parliament. If that were the case the date of
the election would be known in advance as if it was fixed by legislation.
37 CCZ 1/13
If the framers of the former Constitution had intended the date of the
elections to fall on the last day of the maximum duration of the life of Parliament they
would have said so. They would have imposed the duty on the President to simply issue
the proclamation announcing that date. There would have been no need at all to vest the
President with the power to “fix” “such day or days” of the holding of the elections.
It is clear to me that the words “fix” and
“day or days” indicate the conferment of a discretionary power. In other words the date
of elections remains unknown to the public until the publication of the proclamation
fixing it in the Gazette.
Reference to s 158(1)(a) of the new Constitution is inappropriate. Section
158(1) provides that “a general election must be held so that polling takes place not more
than thirty days before the expiry of the five-year period specified in s 143”. Section
158(1) cannot be used to support the applicant’s contention. It is correct to say s 143 of
the new Constitution relates to an automatic dissolution of Parliament. Section 3(1)(e) of
Part 2 of the Sixth Schedule to the new Constitution makes it clear that s 158 does not
come into operation on the publication day.
Section 1 of Part 1 of the Sixth Schedule provides that the “first elections”
shall be held in terms of the new Constitution. In fact s 8 of Part 3 of the Sixth Schedule
specifically provides that the “first elections” must be conducted “in terms of an Electoral
Law in conformity with this Constitution”.
38 CCZ 1/13
In suspending the coming into operation of s 158 the framers of the new
Constitution were aware of the provisions of s 58(1) of the former Constitution. They
were aware of the clear conflict between the position provided for under s 58(1) and that
enacted by s 158(1)(a) of the new Constitution. Section 158(1)(a) provides for the fixing
of the date of elections within the specified period before the date of an automatic
dissolution of Parliament. Section 58(1) to the contrary provides for the fixing of the date
of the election within the prescribed period after the date of automatic dissolution of
Parliament.
For the purposes of the timing of the holding of the first elections the
former Constitution operates simultaneously with the new Constitution. In any case the
applicant’s case is not that a general election must take place within four months before
the President leaves office or Parliament is dissolved by operation of law. His case is that
s 58(1) requires the issuance by the President of a proclamation fixing the date of the first
elections on 29 June 2013 four months before the date of the automatic dissolution of
Parliament.
It is important to refer to constitutions of other countries practising
constitutional democracy. Section 55(3) of the Malaysian Constitution provides that:
“Parliament unless sooner dissolved shall continue for five years from the date of
its first meeting and shall then stand dissolved.”
Section 55(4) then provides that the general election “shall be held within
sixty days from the date of the dissolution of Parliament”. During the debate on the 13 th
39 CCZ 1/13
General Elections in Malaysia there was no question about the period of sixty days
running after the date of the automatic dissolution of Parliament. The debate centred on
when the Prime Minister would fix the date of the election.
The Kenyan situation is even closer to ours. Kenya has had a new
Constitution as us. The Constitution of Kenya 2010 has prescribed a precise general
election date. Section 9 of the Sixth Schedule suspended the operation of some of the
provisions of the new Constitution during the transitional period. The date of the first
elections was fixed on the basis of the former Constitution. Section 9 of the Sixth
Schedule provided that the “first elections for the President, the National Assembly and
the Senate shall be held within sixty days after dissolution of the National Assembly at
the end of its term”.
Cases that went to the courts in Kenya did not raise the question of when
the period of sixty days started to run. The cases which were eventually decided by the
High Court of Kenya raised the question whether the courts should involve themselves in
fixing the date of the first elections. In fact the High Court fixed the date of the first
elections by calculating sixty days after the date of the automatic dissolution of
Parliament.
In this case there are provisions of the new Constitution relating to the
conduct of the first elections which the President would have to take into account in
fixing the date of the elections. As pointed out earlier, s 8 of Part 3 of the Sixth Schedule
40 CCZ 1/13
requires that the first elections be conducted in terms of an Electoral Law in conformity
with the new Constitution.
Section 6(3) of Part 3 of the Sixth Schedule requires that there be
conducted by the Registrar-General of voters under the supervision of the Zimbabwe
Electoral Commission a special and intensive voter registration and voters’ roll
inspection exercise for at least thirty days after the publication day.
Section 157(3) of the new Constitution requires that the Electoral Law
must provide for the nomination of candidates in any election to take place at least
fourteen days after the publication of the proclamation calling for that election. It further
requires that the polling in that election must take place at least thirty days after the
nomination of candidates.
The presumption of constitutionality requires that the President in the
exercise of the discretionary powers vested in him should take into account all these
factors in deciding to issue the proclamation fixing the day or days on which the “first
elections” are to be held. All these factors are designed to ensure not only accountability
to the electorate but also that the electorate plays a meaningful role in the election and
make informed choices.
In all matters relating to the “first elections” Chapter 7 of the new
Constitution is the supreme and binding law. The President would have to take into
41 CCZ 1/13
account the amendments which have to be made by Parliament to the Electoral Law and
other regulations relating to the conduct of the elections to make them in conformity with
the new Constitution. Section 157(5) provides that after a proclamation of the date of the
first elections no amendment to the Electoral Law or to any law relating to the elections
would have effect for the purposes of those elections. Any changes to such a law must be
made before the proclamation is issued.
What all this means is that the President’s exercise of discretion in calling
the first elections and fixing the date when the poll should be held must in itself be in
conformity with the new Constitution. The applicant, like all other potential voters, must
wait for the exercise by the President of his discretion in accordance with the law.
The applicant seems to have been driven into making the application by
his aversion for what he calls a situation in which the executive and judicial arms of
government can function for four months without Parliament. The aversion is obviously
based on the interpretation of the principle of separation of powers which is a
characteristic feature of a constitutional democracy. Whilst the situation criticised by the
applicant may be undesirable it is certainly not unconstitutional. It is a situation provided
for by the Constitution.
The applicant exaggerates the case by saying that the second and fourth
respondents want the affairs of the country to be run by the Executive and Judiciary
without Parliament for four months. An honest and objective assessment of what the two
42 CCZ 1/13
respondents have said shows that they acknowledge that the President has a discretionary
power to fix by a proclamation the date of the first elections. They accept that it is in the
exercise of his discretion for the President to decide when, within the period of four
months after the date of the proclamation dissolving Parliament or the date of automatic
dissolution of Parliament, the first elections are to be held.
Zimbabwe is not the only constitutional democracy with a provision of a
Constitution allowing for a period in which the affairs of the country can be run by the
Executive and Judiciary without Parliament following its dissolution by operation of law
at the end of its full term. Section 55 of the Malaysian Constitution has already been
referred to.
Article 16.3 of the Constitution of Ireland provides that after dissolution of
the Dail Eireann (Parliament) a general election for members of Parliament shall take
place not later than thirty days after the dissolution. Article 15(2) of the Constitution of
Andorra provides that the President has the power to choose a date of an election to fall
between the thirtieth and fortieth day following the end of the term of Parliament.
Article 64.3 of the Constitution of Bulgaria provides that the date for an
election shall fall within two months from the expiry of the life of Parliament.
Article 73(1) of the Constitution of Croatia provides that elections for members of the
Croatian Parliament shall be held not later than sixty days after the expiry of the mandate
or dissolution of the Croatian Parliament.
43 CCZ 1/13
Even in countries such as Canada where the date of a general election is
fixed by legislation the situation the applicant criticises has not been avoided. In terms of
the Canada Elections Act a general election is required to take place on 19 October of the
end of four years of the life of Parliament. The dissolution of Parliament by proclamation
prematurely terminated the life of Parliament. As a result of a general election which
took place on 2 May 2011 the life of Parliament would end on 2 May 2015. The general
election would have to be held five months later on 19 October 2015.
It is clear, therefore, that the principle that there can be a period following
automatic dissolution of Parliament when the affairs of a country are run by the
Executive and Judiciary is recognised. It is interesting to note that whilst the applicant is
concerned about the fate of Parliament, he does not seem to be interested in the need to
comply with the requirements of the new Constitution designed to ensure that the
electorate plays a meaningful role in the electoral process.
There is no doubt in my mind that the requirements of the new
Constitution are designed to ensure that the first elections are truly a legitimate
democratic instrument for the people to choose and control the authorities that will act in
their name. Taking into account the importance of the first elections the new
Constitution tries to guarantee the democratic character of the decision making on the
date of the election.
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It appears to me that once it is accepted that the date of the first elections
can be fixed to take place after 29 June 2013 the whole basis of applicant’s argument
collapses. He then clearly falls in the “within four months after automatic dissolution of
Parliament argument”. It also defeats logic for the majority to find that the President has
broken the supreme law of the land at the same time authorise him to continue acting
unlawfully. That is a very dangerous principle to apply as it has no basis in law. The
principle of the rule of law just does not permit of such an approach. A finding that the
President has a discretionary power under s 58(1) which he has to exercise within the
prescribed time limits would clearly avoid such a contradictory order by the majority.
For all these reasons I would dismiss the application with costs.
PATEL JA: On the question of locus standi, I entirely concur that the applicant
has established the requisite standing to institute this application. Pursuant to s 18(1) of
the former Constitution, which guarantees the protection of the law and constitutional due
process, he undoubtedly has the right to have general elections held when they are due as
prescribed by the law. By the same token, s 18(1a) of that Constitution bestows upon
him a legitimate expectation that the President, the first respondent, will exercise his
functions as a public officer in fixing election dates in accordance with the law. The fact
that he has an alternative administrative law remedy by way of mandamus does not, in
my view, preclude his entitlement to approach this Court for constitutional relief. In this
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regard, I respectfully adopt the reasoning and conclusions of the learned
CHIEF JUSTICE.
Turning to the substantive merits of the matter, the principal issue for
determination is the meaning of and interrelationship between ss 58(1), 63(4) and 63(7)
of the former Constitution. On this aspect, I fully endorse the principle of
constitutionalism that informs the approach taken by the learned CHIEF JUSTICE and
the majority of the Court. However, I am constrained, with the utmost respect, to
disagree with the construction that they place on the provisions under review, in
particular, on s 58(1).
The tripartite structure of the State is the keystone of every constitutional
democracy and the need to safeguard the attendant separation of powers is
unquestionably paramount. However, as was recognised in Mike Campbell (Pvt) Ltd
and Anor v Minister of Lands and Anor 2008 (1) 17 (S) at 33-35, the clear words of a
Constitution must be construed to override any doctrine of constitutionalism predicated
on essential features or core values. In general, the principles governing the
interpretation of a Constitution are basically the same as those governing the
interpretation of statutes. One must look to the words actually used and deduce what
they mean within the context in which they appear. See Hewlett v Minister of Finance
1981 ZLR 571 (S) at 580. If the words used are precise and unambiguous, then no more
is necessary than to expound them in their natural and ordinary sense. See The Sussex
Peerage (1843-1845) 65 RR 11 at 55. In essence, it is necessary to have regard to the
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words used and not to depart from their literal and grammatical meaning unless this leads
to such an absurdity that the Legislature could not have contemplated it. See, in this
regard, the case authorities cited by the learned CHIEF JUSTICE.
Section 58(1) of the Constitution, as amended by Act No. 11 of 2007 to
accommodate harmonised elections, prescribes when general elections are to be held and
the fixing of election dates, 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 prorogation and dissolution of Parliament are dealt with in s 63 of the
Constitution. For present purposes, subss (4) and (7) are the pertinent provisions and
they provide as follows:
“(4) Parliament, unless sooner dissolved, shall last for five years, which
period shall be deemed to commence on the day the person elected as President
enters office in terms of section 28(5) after an election referred to in section 28(3)
(a), and shall then stand dissolved:
Provided that, where the period referred to in this subsection is extended
under subsection (5) or (6), Parliament, unless sooner dissolved, shall stand
dissolved on the expiration of that extended period.”
“(7) Subject to the provisions of subsection (4), any prorogation or
dissolution of Parliament shall be by proclamation in the Gazette and, in the case
of a dissolution, shall take effect from the day preceding the day or first day, as
the case may be, fixed by proclamation in accordance with section 58(1) for the
holding of a general election.”
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The first point to note is that both s 58(1) and subss 63 (4) and (7) have remained
unaltered in substance since they were first enacted in 1980. The second more critical
point is that they deal with two distinct though related constitutional processes, viz. the
fixing of elections on the one hand and the life of Parliament on the other. These two
processes and their objectives have been unnecessarily conflated by the applicant in casu
.
The approach adopted by the learned CHIEF JUSTICE in relation to s 58(1) is to
read it so that the two separate scenarios for the dissolution of Parliament are taken to
follow after the words “shall be held on” rather than the phrase “within a period not
exceeding four months after”. In my respectful view, dividing s 58(1) in this fashion
detracts from its grammatical structure and leads to an inchoate rendition of the
provision. In particular, in the situation where Parliament is dissolved by operation of
law under s 63(4), the literal result is that elections are to be held “on the dissolution of
Parliament”. Does this mean that elections are to be held simultaneously with the
dissolution of Parliament, or immediately thereafter, or at some later stage? More
importantly, this reading has the peculiar effect that no actual “election day or days” are
fixed, contrary to the very purpose of s 58(1). Such a construction surely cannot reflect
what the Legislature would have intended.
A plain reading of s 58(1) makes it clear that elections must be held after the
dissolution of Parliament on such day or days as the President may fix by proclamation.
This applies to both scenarios for the dissolution of Parliament. Where it is dissolved by
the President under s 63(7), elections must take place within four months after the issue
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of a proclamation dissolving Parliament. Where Parliament stands dissolved by
operation of law in terms of s 63(4), elections must be held within four months after the
dissolution of Parliament. In my considered view, the wording used is unambiguous and
does not admit of any other interpretation, nor does it entail any absurdity.
Consequently, there is no need to invoke any teleological or purposive approach in the
construction of s 58(1).
The apparent ambiguity that might emerge arises from the wording of s 63(7) and
its juxtaposition of the dissolution of Parliament with the first election day fixed under
s 58(1). Read in their context, however, there is no real ambiguity as between ss 58(1)
and 63(7). What the latter provision means is this. Any prorogation or dissolution of
Parliament by the President must be effected by proclamation in the Gazette. In the case
of a dissolution, this must take effect from the day preceding the day or days fixed by
proclamation under s 58(1) for the holding of a general election. This would apply, in
particular, where the President dissolves Parliament in terms of s 63(2) well before the
expiration of its five year tenure. However, this is subject to s 63(4), so that the
automatic dissolution of Parliament by operation of law may but need not take effect on
the day preceding the day fixed for the holding of elections. In other words, the
prescribed tenure of Parliament cannot be extended beyond five years in the event that
the date fixed for elections falls outside that period. In that case, the dissolution of
Parliament cannot immediately precede the election date fixed under s 58(1).
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Reading all of the relevant provisions together, the relationship between the
holding of elections and the life of Parliament is resolved as follows. Where Parliament
is dissolved by the President acting under s 63(2), elections must be held within four
months after the issue of the proclamation dissolving it in terms of s 63(7). In this case,
the two events must be synchronised so that the dissolution of Parliament takes effect on
the day preceding the day or days fixed for elections in terms of s 58(1). Conversely,
where Parliament is dissolved by operation of law after the effluxion of five years in
terms of s 63(4), elections must be held within a period not exceeding four months after
the dissolution of Parliament. In this case, elections need not be held immediately after
such dissolution, so long as they are held on a day or days within the four month period
after dissolution. In short, different time frames apply to the two forms of dissolution.
Does this differentiation necessarily entail an absurdity? I am inclined to think
not. Where the President takes a deliberate decision, for whatever reason of political or
practical expediency, to dissolve Parliament before the expiry of its prescribed five year
tenure, that decision involves the exercise of an extraordinary executive power. And in
that extraordinary eventuality, Parliament has deemed it fit to ensure that there should not
be any delay between its dissolution and the holding of general elections. However, the
need for such urgency or immediacy does not arise where Parliament continues in
existence and operation throughout its ordinary term of five years.
Of course, it is a matter of concern that the plain reading of s 58(1) invites the
“spectre” of rule by Executive decree for a maximum period of four months without the
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restraint of Parliamentary oversight. While the possibility of this hiatus may be
undesirable from a democratic perspective, it is not necessarily absurd or
unconstitutional. That scenario, unpalatable as it may be, is explicitly contemplated in
s 31E of the Constitution dealing with the tenure of office of members of the Executive.
More specifically, s 31E(2) provides that:
“No person shall hold office as Vice-President, Minister or Deputy
Minister for longer than three months unless he is a member of Parliament:
Provided that if during that period Parliament is dissolved, he may
continue to hold such office without being a member of Parliament until
Parliament first meets after the dissolution.”
This provision was substituted by Parliament through Act No. 31 of 1989, in
tandem with the advent of the executive presidency. It constitutes a clear recognition
and acceptance by Parliament itself of the possibility of its abeyance for the duration of at
least three months. In effect, it unequivocally fortifies the plain and unqualified
construction of s 58(1) vis-à-vis the provisions of subss 63 (4) and (7).
For all of the aforestated reasons, I would dismiss the present application on its
merits.
Mandizha & Company, applicant’s legal practitioners
Terrence Hussein, Ranchod & Company, first respondent’s legal practitioners
Atherstone & Cook, second respondent’s legal practitioners
Web, Low & Barry, fourth respondent’s legal practitioners
Civil Division of the Attorney General’s Office, fifth respondent’s legal practitioners