Madhuku: Govt has no legal basis in approaching the Constitutional Court seeking an extension

GOVERNMENT has no legal basis to approach the Constitutional Court seeking an extension to the July 31 poll date order that it has already complied with, legal experts have said. 
They said the appeal to President Mugabe, by Sadc extraordinary summit of heads of state and government who met in Mozambican on Saturday, to approach the courts seeking a two-week extension to the July 31 deadline was out of sync with the local constitutional provisions.
The two MDC formations are against complying with the Constitutional Court ruling that harmonised elections be held by July 31 while Zanu-PF accepted the order.
President Mugabe complied with the order on Thursday by proclaiming that elections would be held on July 31.
The Summit then begged that Justice and Legal Affairs Minister Patrick Chinamasa approach the Constitutional Court on behalf of President Mugabe since the apex court's order was directed at the Head of State and Government and Commander-in-Chief of the Zimbabwe Defence Forces.
"Government will have no legal basis or jurisprudential in approaching the Constitutional Court seeking an extension," said National Constitutional Assembly chairperson, Professor Lovemore Madhuku.
"The Constitutional Court is likely to dismiss the application before hearing the arguments because accepting it, will effectively make the Sadc heads of state a de-facto higher court and in the process creating a precedent where in future litigants will approach not only Sadc but the Africa Union and the United Nations and other bodies, a development that will open the floodgates."
Prof Madhuku said there was no provision in the Constitution that allowed the Constitutional Court to grant an extension once it has already finalised the matter.
The renowned University of Zimbabwe law lecturer said there was a distinction between the cases of three former MDC legislators who wanted by-elections in Matabeleland constituencies after being sacked by their party and the current case.
In the case of former MDC MPs - Abednico Bhebhe (Nkayi South), Njabuliso Mguni (Bulilima East) and Norman Mpofu (Lupane East) - President Mugabe was granted an extension of the March 31 by-elections deadline to June 29 this year.
President Mugabe had approached the High Court before complying with a Supreme Court order to set by-elections dates for the three constituencies by March 31.The President's argument was that the idea of holding by-elections and harmonised elections a few months later did not make economic and/or practical sense.
"In that case the President had not complied with a Supreme Court order when he approached the High Court to be condoned and to seek an extension. In this case, he has complied and that finishes the mater completely meaning that the court has no jurisdiction whatsoever to entertain this application.
"If the President were to go back to the Constitutional Court seeking an extension, the court would say to him 'but you have complied'. How would the President answer that?
"He will be forced in answering the court that the political circumstances preceding the Sadc Summit and the Summit itself, of which those are political issues that will not give the court any jurisdictional basis.
"The Constitutional Court is likely to dismiss the case without hearing it on the basis that it meets all the ingredients of a frivolous and vexatious application," said Prof Madhuku.
The Constitutional Court as enshrined in Section 164 of the new Constitution, the law sage said, was expected to be independent and only subject to "the constitution and the law".
Prof Madhuku said it was important for the Constitutional Court to ask itself why decisions of similar courts in the region were not subjected to Sadc summits.
"The Constitutional Court has a duty to protect its independence and the finality of its decisions. Its decisions are final against the whole world.
"Therefore, this case will present an excellent opportunity for the Constitutional Court to assert its authority and independence and to make that point once and for all.
"To put matters beyond doubt, the Constitutional Court must pronounce clearly that it is the final authority on matters relating to the Constitution of Zimbabwe in the same way the United States Supreme Court has final say over American law.
"If the Court misses this opportunity, it will create a dangerous precedent for the future where all decisions by Zimbabwean courts will still have room for further debate in forums outside the country," said Prof Madhuku.
He said if the Constitutional Court were to consider the application, it would have to involve the initial litigant, Mr Jealousy Mawarire in whose favour it ruled when he sought an order compelling President Mugabe to proclaim the election date before June 29 when the life of the Seventh Parliament ends.
The order was granted and President Mugabe publicly stated that he was going to comply while the MDC formations wanted him to disregard it.
Mr Mawarire said he was still to see the contents of the full Sadc communiqué, after which he said, he would consult with his lawyers for a way forward.
"We are yet to receive the full communiqué and after receiving and studying it, I will approach my lawyers to get the correct legal position.
"But as it stands, I am not worried about a Sadc communiqué because it doesn't overturn the Constitutional Court judgment because the communiqué is just an ordinary document produced by non-legal minds over a cup of tea purporting to be overriding a constitutional order made by our esteemed judges," Mr Mawarire said.
Another law expert, Mr Godwills Masimirembwa concurred with Prof Madhuku that Government was likely to find it difficult to convince the Constitutional Court because there was no legal basis for the application.
"There is no legal basis to seek an extension as it is possible to comply with all the constitutional timeframes before July 31.
"Unless there is good cause shown by the Executive, the Constitutional Court can only consider an application that is founded on legal grounds and not political arguments. In this case, the arguments are on the basis of political machinations.
"His Excellency acted in terms of the law when he invoked the Presidential Powers (Temporary Measures) Act [Chapter10:20] to amend the Electoral Act and his proclamation of the election dates.
"The Executive has to justify why it wants an extension. Yes, Sadc may have urged Government to approach the Constitutional Court seeking an extension but there is no guarantee that it will be granted.
"The extension sought by Sadc is just trying to play the nice guy to MDC formations who wanted to use politics to overturn the Constitutional Court judgment but Sadc refused to disregard the ruling," said Mr Masimirembwa.
Mr Terrence Hussein of Hussein, Ranchhod and Company said the Constitutional Court was not answerable to Sadc or any other body adding that it would make its decisions on legal basis.
He said it was unheard of that a Government can seek an extension over an order it has already complied with.
"If they do make the application then the decision would rest on the Constitutional Court to consider.
"The Constitutional Court is likely to disregard whatever anyone else said, be it, Sadc or any other body and will be confined to the four corners of the laws of Zimbabwe.
"They will not be guided by any regional political grandstanding by those who are enjoying directing affairs in Zimbabwe from outside," said Mr Hussein.