'Why I granted Mugabe elections extension,' Judge President explains

JUDGE President Justice George Chiweshe has said it would not have made sense to order President Mugabe to hold by-elections as that would strain resources since the country is geared for harmonised elections shortly.

Giving reasons why he granted the President an extension of the March 31 by-elections deadline last week, Justice Chiweshe said even if the by-elections were held, the new legislators would be in office for a very short period.

He said he was convinced that the life of Parliament would end by June 29 because there was nothing to suggest the country could be in a war situation or under a state of emergency to warrant the extension of the tenure of Parliament.

In terms of the Constitution, harmonised elections should be held before the expiry Parliament, which for the Seventh Parliament manifests at midnight on June 29.

Justice Chiweshe said it was common cause that President Mugabe was sworn in on June 29 2009, hence the life of the present Parliament should be deemed to run from that date for a period of five years.

"Calculated from that date, there is no doubt whatsoever that the life of the present Parliament shall end on June 29, 2013," he said.

"On that date, Parliament shall stand dissolved by effluxion of time. It is, however, permissible to extend the life of Parliament beyond that date on grounds provided under Section 63 (5) and (6) of the Constitution.

"These sections allow for that extension only if the country is at war or under a declared state of public emergency. No such situation presently obtains in the country. I have no reason to believe otherwise today or in the future."

Justice Chiweshe said the Parliament, to which the three former legislators - Abednico Bhebhe, Njabuliso Mguni and Norman Mpofu - aspired to be elected should cease to exist on June 29.

He said Advocate Thabani Mpofu, who represented the legislators, sought without success to emphasise the possibility of an extension of the five-year period due to calamities.

"The court is informed that apart from the three House of Assembly constituencies under consideration, there are further vacancies in other constituencies, namely 16 in the House of Assembly, 12 in the Senate and 164 council wards," Justice Chiweshe said.

"Should this application fail, the country would need to hold by-elections to fill these vacancies and again the winners would be in their seats for a very short period of time."

Justice Chiweshe said the expected by-elections were too many and would have an effect on resources considering that the harmonised elections would also need support.

"The scale and extent of these by-elections suggests that enormous resources would need to be mobilised," he said.

"Advocate Mpofu argues that by-elections will be held under consideration and no other. The truth of the matter, however, is that if not granted the relief he seeks, the applicant (President Mugabe) will be obliged to hold by-elections in all vacant constituencies and wards."

Justice Chiweshe said he concurred with President Mugabe that compliance with the existing order was no longer reasonable or practical.

He also said he had jurisdiction to hear the matter as it was trite that the court has inherent jurisdiction to manage the execution of its own orders, ensuring whenever necessary that the execution of the same does not lead to absurd or irrational outcomes.

President Mugabe was last year ordered by the High Court to set by-election dates for Nkayi South, Bulilima East and Lupane East by March 31 this year following an application by Bhebhe, Mguni and Mpofu, all former MDC legislators who used to hold the constituencies.

President Mugabe, through Deputy Attorney-General Advocate Prince Machaya, approached the High Court arguing that the idea of holding by-elections and then harmonised elections a few months later did not make economic and/or practical sense.

Adv Mpofu, who represented the former legislators, argued that the law entitled his clients to participate in a by-election and that President Mugabe did not allege that there were no funds for that purpose.

He also argued that it was not true that Parliament stands dissolved on June 29 as the Constitution stated that its lifespan could be extended in the event of a war or if the President declared a state of emergency.

Another party which had taken President Mugabe to court, the Zimbabwe National Youth Service Graduates' Association, last Thursday consented to the President's application, saying its application had been superseded by events as the new constitution would address their concerns.

Prime Minister Morgan Tsvangirai, who wanted to be included as a respondent in the matter, was forced to withdraw his application after the State amended its application to deal with the by-elections only.