Mujuru ally court ruling favours Mugabe

President Mugabe is still required by law to proclaim dates for a by-election in Mwenezi East within 14 days of the notification by Parliament, despite the latest Constitutional Court (ConCourt) ruling which referred the case back to the High Court, it has been emerged.

The ConCourt last week ordered the High Court to make a ruling on the legitimacy of the case brought by Mr Kudakwashe Bhasikiti by July 31. Mr Bhasikiti is seeking to stop President Mugabe from proclaiming a by-election in the constituency after he was booted out from both Zanu PF and the National Assembly.

Some sections of the media had erroneously taken the court decision to mean an outright victory for Mr Bhasikiti.

Speaking to The Sunday Mail, the President's legal representative in the case, Mr Terrence Hussein said the judgment does not stop the President from proclaiming the election.

"This judgment does not stop the President from proclaiming the election. What it means is that he should proclaim the election, but dates for the said election can only be after July 31, when the matter is finalised in court. So this means that the President can only set dates from August 1 as possible dates for the election, but that does not stop him from doing so within the 14 days prescribed by the electoral act," he said.

According to Section 39 (1) of the Electoral Act, President Mugabe should proclaim the Mwenezi East by-election within 14 days after notification by the Speaker.

Part of the section reads: "A vacancy in the membership of Parliament which exists otherwise than by reason of a dissolution of Parliament shall, subject to this section, be notified to the President and the Commission in writing by the President of the Senate or the Speaker of the House of Assembly, as the case may be, as soon as possible after the President of the Senate or the Speaker of the House of Assembly becomes aware of the vacancy. [Section amended by Act 17 of 2007] (2) The President shall, within a period of fourteen days after —

"(a) he or she has been notified in terms of this section of a vacancy in the membership of Parliament; or (b) a declaration is made by the Chief Elections Officer in terms of section fifty; or (c) a nomination day or the last nomination day, as the case may be, where no person has been duly nominated for election; publish a notice in the Gazette ordering a new election to fill the vacancy in the same manner, with any changes that may be necessary, as is provided in section thirty-eight in regard to a general election, and the provisions of this Act shall apply accordingly: Provided that the President shall not be required to act in terms of this subsection in respect of any vacancy in the membership of Parliament which arises within a period of twenty-one days before the making of a proclamation in terms of subsection (1) of section 58 of the Constitution fixing a day or days for the holding of a general election."

Mr Hussein said Mr Bhasikiti had approached the court seeking recourse on three issues but had only succeeded in winning one.

"I was in court and Mr Bhasikiti was seeking recourse on three issues. The first one was to stop President Mugabe from calling a by-election. This was not granted. They also asked for costs, but this was not granted as well. They then sought to have the by-election after the case was heard in the High court and this is what was granted," he said

Mr Hussein said accordingly, President Mugabe should call for by-elections within 14 days, counting from June 11, the date when Parliament declared his seat vacant after receiving a letter from Zanu PF which was notifying the House that Mr Bhasikiti was no longer the revolutionary party's representative.

Mr Bhasikiti is one of the seven Zanu PF members who were expelled from the party last month for working with the Dr Joice Mujuru-led cabal that sought to illegally topple President Mugabe ahead of the party's Congress last December.

Other expelled members are Ray Kaukonde, Dr Olivia Muchena, David Butau, Dzikamai Mavhaire, Claudius Makova and Kudakwashe Gope.

Following his expulsion, Mr Bhasikiti approached the High Court seeking to bar Parliament from declaring his seat vacant. Justice Mangota turned down his application saying that it had been overtaken by events after Parliament had been notified of his recall by the party.