Opinion / Columnist
Justice Malaba explains why he disagrees with election date ruling
07 Jun 2013 at 16:27hrs | Views
I HAVE read the judgement prepared by the learned Chief Justice (Godfrey Chidyausiku). I do not, with respect, agree with it for reasons I agree to set out.
The applicant (Jealousy Mawarire) approached the court seeking redress in terms of Section 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 May 22 2013, which is the publication day.
The question for determination is whether the interpretation by the applicant of Section 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 (President Robert Mugabe) has violated his fundamental right to the protection of the law is correct.
Meaning
In my view, the clear and unambiguous provisions of Section 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.
According to the interpretation of Section 58(1) which the applicant wants the court to apply, the provision imposes on the president a duty to fix June 29 2013 or a day after as the date of the first elections. He contends that Section 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 June 29 2013.
It is common cause that up until the hearing of the application on May 24, 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 June 29 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 June 29 2013 as the date of the first elections, the applicant alleges that his right to the protection of the law has been violated.
Terms
I have no difficulty in recognising in the applicant the right to approach the court in terms of Section 24(1) of the former constitution seeking the relief of an order of mandamus against the president. The principal on locus standi is after all that it is better to let people have access to the fountain of justice where they fail for the reasons of their folly than have them blame the gatekeepers. An order of mandamus is a means of relief which the court, in the exercise of its wide discretionary powers under Section 175(6)(b) of the new constitution can, in appropriate cases, grant.
In determining the questions raised by the applicant, 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 greatest care. There is no doubt that Section 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 these different aspects of the choosing of the date of the elections.
Section 58(1) vests in the president discretionary power to fix a day or days of the first election by 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 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 Section 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 Section 58(1), no legal duty on him to fix June 29 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 general elections following automatic dissolution of parliament is precisely determined in the constitution. The date is left to be chosen by authority vested with the power to do so within a framework of time determined by the constitution. Within that timeframe, the authority is left with a fairly large margin of appreciation in choosing the day or days in which the election will have to take place.
Repository
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 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 dates for the election is a matter strictly within his discretion.
Conditions
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. While a court can review a public officer's action for legality, it cannot act as if it were the executive.
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 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 Section 58(1) by the applicant has given rise to the question for determination.
In my view, Section 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 Sections 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.
If the dissolution of parliament is by proclamation issued by the president in terms of Section 63(2) of the former constitution, the time within which the day or days for the holding of the elections starts running from the date of the issuance of the proclamation.
If the dissolution of parliament is automatic as provided for in Section 63(4) ,the time within which the day or days fixed for the holding of the elections 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. An election is usually called and polling dates fixed by proclamation after and not before dissolution. I have no doubt in my mind that the period of four months referred to in Section 58(1) related to what should happen after the happening of either dissolution of parliament by proclamation or automatic dissolution.
Contention
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 the section. According to the old legal maxim, "parliament does not speak in vain". These words must surely have been used in Section 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 first elections.
The words "or, as the case may be" mean that whichever of the two events referred to in Sections 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 Section 58(1).
While the two elements are the direct consequences of the issuances 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 Section 63(7).
The words "subject to the provisions of subs (4)" in Section 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, while 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 Section 63(4).
It is important to understand the effect of Section 63(7). The section must be read together with Sections 63(1) and (2). While these sections provide for the power to prorogue and dissolve parliament respectively, they do not state the manner in which the 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 Section 63(7) then goes on to prescribe the restriction therein contained.
Accountability
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 election facilitates accountability to the electorate in each case.
Put differently, Section 63(7) does not affect a situation where Section 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 Section 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 election be based on except itself.
The fact is that there is nothing in Section 58(1) of the former constitution imposing 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.
If the framers of the former constitution had intended the election date 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 election.
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 an election remains unknown to the public until the publication of the proclamation fixing it in the gazette.
Reference to Section 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 Section 143". Section 158(1) cannot be used to support the applicant's contention.
It is correct to say Section 143 of the new constitution relates to automatic dissolution of parliament. Section 3(1)(e) of Part 2 of the Sixth Schedule to the new constitution, makes it clear that Section 158 does not come into operation on the publication day.
Section 1 of Part 1 of the Sixth Schedule provides that the "first elections" should be held in terms of the new constitution. In fact, Section 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.
In suspending the coming into operation of Section 158, the framers of the new constitution were aware of the provisions of Section 58(1) of the former constitution. They were aware of the clear conflict between the position provided for under Section 58(1) and that enacted by Section 158(1)(a) of the new constitution.
Section 158(1)(a) provides for the fixing of the date of election within the specified period before the date of 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 Section 58(1) authorises the issuance by the president of a proclamation fixing the date of the first elections on June 29 2013, some four months before the date of automatic dissolution of parliament.
It is important to refer to constitutions of other countries practicing 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 dissolution of parliament". During the debate on the 13th general elections in Malaysia, there was no question about the period of 60 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, 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 election.
In fact, the High Court fixed the date of the first elections by calculating sixty days after the date of 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, Section 8 of Part 3 of the Sixth Schedule requires that the first elections be conducted in terms of an Electoral Law in conformity with the new constitution.
Section 6(3) of the 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 30 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 14 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 30 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" Cap.7 of the new constitution is the supreme and binding law. The president would have to take into 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 executive and judicial arms of the 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 characteristic feature of constitutional democracy. While 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 respondents have said shows that they acknowledge that the president has a discretionary power to proclam 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 the dissolution of the Dail Eireann (parliament), a general election for members of parliament shall take place not later than 30 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 30th or 40th days following the end of the term of the president.
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 60 days after the expiry of the mandate or dissolution of the Croatian parliament.
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 October 19 at the end of four years 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 May 2 2011, the life of parliament would end on May 2 2015. The general election would have to be held five months later on October 19 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 while 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 these 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.
It appears to me that once it is accepted that the date of the first election can be fixed to take place after June 29 2013, the whole basis of the applicant's argument collapses. He then clearly falls in the "within four months after the 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 and 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 Section 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 should dismiss the application with costs.
The applicant (Jealousy Mawarire) approached the court seeking redress in terms of Section 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 May 22 2013, which is the publication day.
The question for determination is whether the interpretation by the applicant of Section 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 (President Robert Mugabe) has violated his fundamental right to the protection of the law is correct.
Meaning
In my view, the clear and unambiguous provisions of Section 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.
According to the interpretation of Section 58(1) which the applicant wants the court to apply, the provision imposes on the president a duty to fix June 29 2013 or a day after as the date of the first elections. He contends that Section 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 June 29 2013.
It is common cause that up until the hearing of the application on May 24, 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 June 29 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 June 29 2013 as the date of the first elections, the applicant alleges that his right to the protection of the law has been violated.
Terms
I have no difficulty in recognising in the applicant the right to approach the court in terms of Section 24(1) of the former constitution seeking the relief of an order of mandamus against the president. The principal on locus standi is after all that it is better to let people have access to the fountain of justice where they fail for the reasons of their folly than have them blame the gatekeepers. An order of mandamus is a means of relief which the court, in the exercise of its wide discretionary powers under Section 175(6)(b) of the new constitution can, in appropriate cases, grant.
In determining the questions raised by the applicant, 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 greatest care. There is no doubt that Section 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 these different aspects of the choosing of the date of the elections.
Section 58(1) vests in the president discretionary power to fix a day or days of the first election by 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 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 Section 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 Section 58(1), no legal duty on him to fix June 29 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 general elections following automatic dissolution of parliament is precisely determined in the constitution. The date is left to be chosen by authority vested with the power to do so within a framework of time determined by the constitution. Within that timeframe, the authority is left with a fairly large margin of appreciation in choosing the day or days in which the election will have to take place.
Repository
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 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 dates for the election is a matter strictly within his discretion.
Conditions
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. While a court can review a public officer's action for legality, it cannot act as if it were the executive.
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 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 Section 58(1) by the applicant has given rise to the question for determination.
In my view, Section 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 Sections 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.
If the dissolution of parliament is by proclamation issued by the president in terms of Section 63(2) of the former constitution, the time within which the day or days for the holding of the elections starts running from the date of the issuance of the proclamation.
If the dissolution of parliament is automatic as provided for in Section 63(4) ,the time within which the day or days fixed for the holding of the elections 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. An election is usually called and polling dates fixed by proclamation after and not before dissolution. I have no doubt in my mind that the period of four months referred to in Section 58(1) related to what should happen after the happening of either dissolution of parliament by proclamation or automatic dissolution.
Contention
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 the section. According to the old legal maxim, "parliament does not speak in vain". These words must surely have been used in Section 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 first elections.
The words "or, as the case may be" mean that whichever of the two events referred to in Sections 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 Section 58(1).
While the two elements are the direct consequences of the issuances 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 Section 63(7).
The words "subject to the provisions of subs (4)" in Section 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, while 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 Section 63(4).
Accountability
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 election facilitates accountability to the electorate in each case.
Put differently, Section 63(7) does not affect a situation where Section 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 Section 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 election be based on except itself.
The fact is that there is nothing in Section 58(1) of the former constitution imposing 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.
If the framers of the former constitution had intended the election date 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 election.
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 an election remains unknown to the public until the publication of the proclamation fixing it in the gazette.
Reference to Section 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 Section 143". Section 158(1) cannot be used to support the applicant's contention.
It is correct to say Section 143 of the new constitution relates to automatic dissolution of parliament. Section 3(1)(e) of Part 2 of the Sixth Schedule to the new constitution, makes it clear that Section 158 does not come into operation on the publication day.
Section 1 of Part 1 of the Sixth Schedule provides that the "first elections" should be held in terms of the new constitution. In fact, Section 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.
In suspending the coming into operation of Section 158, the framers of the new constitution were aware of the provisions of Section 58(1) of the former constitution. They were aware of the clear conflict between the position provided for under Section 58(1) and that enacted by Section 158(1)(a) of the new constitution.
Section 158(1)(a) provides for the fixing of the date of election within the specified period before the date of 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 Section 58(1) authorises the issuance by the president of a proclamation fixing the date of the first elections on June 29 2013, some four months before the date of automatic dissolution of parliament.
It is important to refer to constitutions of other countries practicing 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 dissolution of parliament". During the debate on the 13th general elections in Malaysia, there was no question about the period of 60 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, 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 election.
In fact, the High Court fixed the date of the first elections by calculating sixty days after the date of 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, Section 8 of Part 3 of the Sixth Schedule requires that the first elections be conducted in terms of an Electoral Law in conformity with the new constitution.
Section 6(3) of the 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 30 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 14 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 30 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" Cap.7 of the new constitution is the supreme and binding law. The president would have to take into 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 executive and judicial arms of the 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 characteristic feature of constitutional democracy. While 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 respondents have said shows that they acknowledge that the president has a discretionary power to proclam 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 the dissolution of the Dail Eireann (parliament), a general election for members of parliament shall take place not later than 30 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 30th or 40th days following the end of the term of the president.
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 60 days after the expiry of the mandate or dissolution of the Croatian parliament.
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 October 19 at the end of four years 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 May 2 2011, the life of parliament would end on May 2 2015. The general election would have to be held five months later on October 19 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 while 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 these 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.
It appears to me that once it is accepted that the date of the first election can be fixed to take place after June 29 2013, the whole basis of the applicant's argument collapses. He then clearly falls in the "within four months after the 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 and 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 Section 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 should dismiss the application with costs.
Source - Justice Malaba
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