Opinion / Columnist
Magaisa is the clumsy architect of Tsvangirai's embarrassment
07 Apr 2013 at 05:46hrs | Views
Is President Robert Mugabe required to issue the proclamation fixing the date of the next harmonised general election in consultation with Prime Morgan Tsvangirai - who must give his consent - in terms of Schedule 8 of the Constitution of Zimbabwe which defines the legal basis of the GPA government? The answer is No. Absolutely not. There's no legal requirement of that kind at all in Schedule 8 or any other part of the Constitution.
This is notwithstanding widespread propaganda peddled by the MDC formations, their media mouthpieces, their NGO affiliates, their donor supporters who have wasted US$2,6 billion in their regime change agenda over the last four years and their so-called legal experts - who apparently have become more concerned with making money than making legal sense - who have each and all been falsely claiming that President Mugabe must in terms of Constitution of Zimbabwe Amendment (No. 19) Act, 2009 seek Tsvangirai's consent before fixing the polling date of the forthcoming elections and the date of the sitting of the nomination court for those elections.
Section 20.1.3 (q) of Schedule 8 of the Constitution clearly provides that "The President may, acting in consultation with the Prime Minister, dissolve Parliament". It is very clear from this equally clear provision which has been seriously misunderstood that the reference in question is to "the dissolution" of Parliament and not to "the proclamation of an election date" or "the fixing of the date of the sitting of the nomination court" for that election. One does not have to be a lawyer to see or understand the constitutional difference of night and day between a Presidential dissolution of Parliament on the one hand and a Presidential proclamation fixing the polling date and fixing the date of the sitting of the nomination court.
Yet and rather astonishingly, there have been self-indulgent and in fact misleading claims whose pathetic fallacy has been that President Mugabe has been seeking to dissolve Parliament without consulting Tsvangirai in alleged violation of Section 20.1.3(q) of Schedule 8 of the Constitution. For example - in his embarrassingly failed bid to be joined as a fourth respondent in the by-elections case that was won by President Mugabe last Friday - Tsvangirai falsely told the High Court under oath that "I take note that the applicant (President Mugabe) has indicated that he will dissolve Parliament and call for harmonised election on or before or before the 29th June".
There was however, as there still is, no evidence either before the court or in the public domain of President Mugabe's alleged indication that "he will dissolve Parliament". President Mugabe has been very aware that Parliament will be dissolved by operation of the law on June 29. The only issue which has been exercising his mind as his sole constitutional responsibility about which he does not have to consult anyone and which he has not decided is when to fix as the date of the harmonised elections and as the date of the sitting of the nomination court.
In the circumstances - and with reference to the current discussions or debate on the matter - it is very clear that President Mugabe did not seek the dissolution of Parliament in the recent High Court case on by-elections which was decided in his favour last Friday as that would have been meaningless given the legal position that Parliament will be automatically dissolved on June 29 by operation of the law. Indeed the President has not sought any dissolution of Parliament and he will not seek it simply because he does not have to seek it at all in view of the compelling fact that the dissolution of Parliament is inevitably coming on June 29 by operation of the law whose effect does not require any consultation with anyone let alone Prime Minister Tsvangirai who appears to be dying to be consulted.
It is therefore necessary for everyone, especially the usual noise-makers who have a bad habit of speaking with open mouths and shut minds, to understand that Section 20.1.3(q) of Schedule 8 of the Constitution which provides that "The President may, acting in consultation with the Prime Minister, dissolve Parliament" is no longer a relevant law in practical terms because its GPA effect has been overtaken by events on the ground. This is because the impending dissolution of Parliament at midnight on June 29 does not have to be decided or proclaimed by President Mugabe as it will be automatically done by operation of the law.
Parenthetically - and for the avoidance of doubt as to why Section 20.1.3(q) of Schedule 8 of the Constitution was enacted - the dissolution of Parliament would have been an issue had it become necessary within the life of the GPA well ahead of the mandatory expiry of the constitutional life of the current Seventh Parliament on 29 June. When the GPA was signed by Zanu -PF and the two MDC formations on September 15, 2008 the general understanding was that the three parties would form a coalition government that would not last the full duration of the life of the Seventh Parliament with the expectation that there would be a general election some 24 months or so down the line. That eventuality which was quite possible would have necessitated an early dissolution of Parliament by President Mugabe which would have required him to consult Tsvangirai in terms of Section 20.1.3(q) of Schedule 8 of the Constitution which is a direct product of the GPA.
But with less than 100 days to go before the automatic dissolution of Parliament on June 29 by operation of the law, Section 20.1.3(q) of Schedule 8 of the Constitution is literally now water under the bridge. What remains to be decided and proclaimed by President Mugabe - without a constitutional or even GPA obligation to consult Tsvangirai - is the fixing of the date of the forthcoming elections and the date of the sitting of the nomination court for those elections. It is needless to say that the proclamation will of course have to take into account the constitutional fact that Parliament will stand automatically dissolved on June 29.
In the light of the foregoing, why have Tsvangirai, his media mouthpieces, his legal experts, his NGO affiliates and his donor founders and funders been falling on each other pretending that President Mugabe is contemplating dissolving Parliament without consulting Tsvangirai as Prime Minister when that is far-fetched nonsense with no legal basis? There are a number of reasons that explain the circus in Tsvangirai's embattled camp.
Firstly, Tsvangirai and his MDC are facing electoral defeat and they can see it right in their own faces and they can feel it in their terrified hearts while they can understand it in their shut minds notwithstanding their open mouths which are spewing gibberish full of false bravado. The writing is on the wall, the forthcoming elections will make Tsvangirai and his MDC history. The most telling explanation why this is so was given by former MDC-T MP and University of Zimbabwe law lecturer Munyaradzi Gwisai who was widely quoted in the media last week saying Tsvangirai and his MDC "had the lost the advantage of the protest vote" that they enjoyed up to 2008.
Gwisai observed that, "Obviously the advantage of the protest vote of 2008 for the MDC is gone. The corrupt behaviour of its councillors and (cabinet) ministers has eroded that" rhetorically asking, "How do you expect workers to be encouraged when we have Elton Mangoma, a senior MDC minister supervising a ministry that dismisses a workers' leader, Angeline Chitauro, for demanding a living wage when we have minister Paurina Mpariwa, failing for four years to issue minimum wages for domestic workers and other employees; when we have minister Lucia Matibenga refusing to meet public servants and the neo-liberal policies of finance minister Tendai Biti have not endeared the MDC with the people".
Echoing Gwisai's sentiments, another University of Zimbabwe law professor Lovemore Madhuku has boldly declared that "the MDC-T is no longer the people's party that we formed in 1999. We cannot follow a person (Tsvangirai) who thinks the MDC is his personal project".
When a political party is facing clear and present electoral defeat as is the MDC-T, it typically does strange and irrational things by clutching at straws. The MDC-T's false claim that President Mugabe is planning to dissolve Parliament without consulting Tsvangirai in terms of Section 20.1.3(q) of Schedule 8 of the Constitution which is now water under the bridge given the impending automatic dissolution of Parliament on June 29 is evidence of an embattled party facing electoral defeat.
Secondly - and because it is facing inevitable electoral defeat - it is now clear that Tsvangirai's MDC has been deserted by its legion of regime change experts that used to swamp its ranks. This is why Tsvangirai did not have quality legal or technical advice when he exposed himself by making an ill-advised court application in the by-election case which left him with egg on his bemused fat face.
Thirdly - and in the absence of his previous high powered foreign team of experts that have deserted him - Tsvangirai is having to make do with his clueless political advisor in the donor funded parallel structures of the Prime Minister's office, Alex Magaisa, who is a lawyer by training and who taught the subject at Kent University in Britain before joining Tsvangirai in the deep end but whose understanding of law and politics in Zimbabwe has left more than a lot to be desired by merchants of regime change.
Magaisa is the clumsy architect of Tsvangirai's embarrassing court application filed by Chris Mhike of Artherstone which had to be withdrawn in a huff before it was heard due to its fatal legal incompetence. Magaisa claimed in some online media last Friday that Tsvangirai's failed intervention to be included as the fourth respondent in the by-elections case won by President Mugabe was "a victory for good sense and democracy" and added falsely that "the Prime Minister correctly exercised his right to prevent the circumvention through judicial process of the general understanding that the setting of dates for harmonised elections is a matter of consultation between the principals of the GPA".
There are two notable features of Magaisa's comments that are quite disturbing given his office. One is that his proposition that "defeat is victory" is indeed uniquely MDC-T and it has been the root of electoral violence in Zimbabwe since the formation of the MDC-T in 1999. The other is that Magaisa's fatuous claim that there's a "judicial process of the general understanding that the setting of dates for harmonised elections is a matter of consultation between the principals of the GPA" proves that he is no better than a bush lawyer because there is no such judicial process and no law with that requirement. As already pointed out, the only law there is comes from Section 20.1.3(q) of Schedule 8 of the Constitution which provides that "The President may, acting in consultation with the Prime Minister, dissolve Parliament".
But this law is not the same as the law enabling the President to proclaim the date of the election and the date of the sitting of the nomination court. In any event, Section 20.1.3(q) of Schedule 8 is no longer a relevant law in practical terms because its GPA effect has been overtaken by events on the ground such that Parliament will be automatically dissolved on June 29 not as a result of any action by President Mugabe but by operation of the law. The fact that Magaisa does not know this tells a complete story about the chaos, confusion and incompetence that are ruling in the MDC-T ahead of the forthcoming elections and explains why knives are reported to be out for the besieged Magaisa who is finding it difficult if not impossible to figure out what to "gaisa".
Fourthly, the Magaisa saga and its court fiasco in the by-elections case last week raise serious questions about the internal state of affairs in the MDC-T and about why its secretary general - Tendai Biti - did not proffer better advice, counsel and legal leadership given that he is a lawyer of considerable standing in the national legal fraternity compared to Magaisa who has proven himself to be a clueless political disaster disguised as a Kent lawyer with little to show on the contested ground for his online reputation.
What was Tendai Biti's role as the MDC-T's secretary general and as a lawyer in his own right in the conceptualisation, construction and filing of Tsvangirai's ill-fated court application in the by-elections case that President Mugabe won? Did Biti agree with the patently unwise application? Why has Biti remained so loudly silent on this very important constitutional matter? Is Biti not aware that there's a difference between the dissolution of Parliament and the proclamation of an election date? More specifically, is Biti not aware that the dissolution of the Seventh Parliament will be by operation of the law on June 29 and that therefore President Mugabe is constitutionally enjoined to decide on the election date and to fix it along with the date of the sitting of the nomination court without consulting Tsvangirai?
While Biti ponders these and related questions, there is no need for him to explain the import of Section 20.1.3(q) of Schedule 8 of the Constitution which stipulates that "The President may, acting in consultation with the Prime Minister, dissolve Parliament". It is very clear that this provision whose consequence has been overtaken by the fact that the Seventh Parliament will be automatically dissolved on June 29 has nothing to do with "the proclamation of an election date" for the forthcoming elections or "the fixing of the date of the sitting of the nomination court" for the election. The dissolution of Parliament will be a done deal by operation of the law and this means Tsvangirai can forget about being consulted by the law while the proclamation of the date of the election in view of that dissolution is going to be done by President Mugabe as his constitutional prerogative whose exercise or discharge does not require him to consult Tsvangirai either in terms of the current Constitution, or the GPA or he new Constitution which will be used to run the forthcoming elections.
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Professor Jonathan Moyo is a political scientist and MP for Tsholotsho North (Zanu-PF)
This is notwithstanding widespread propaganda peddled by the MDC formations, their media mouthpieces, their NGO affiliates, their donor supporters who have wasted US$2,6 billion in their regime change agenda over the last four years and their so-called legal experts - who apparently have become more concerned with making money than making legal sense - who have each and all been falsely claiming that President Mugabe must in terms of Constitution of Zimbabwe Amendment (No. 19) Act, 2009 seek Tsvangirai's consent before fixing the polling date of the forthcoming elections and the date of the sitting of the nomination court for those elections.
Section 20.1.3 (q) of Schedule 8 of the Constitution clearly provides that "The President may, acting in consultation with the Prime Minister, dissolve Parliament". It is very clear from this equally clear provision which has been seriously misunderstood that the reference in question is to "the dissolution" of Parliament and not to "the proclamation of an election date" or "the fixing of the date of the sitting of the nomination court" for that election. One does not have to be a lawyer to see or understand the constitutional difference of night and day between a Presidential dissolution of Parliament on the one hand and a Presidential proclamation fixing the polling date and fixing the date of the sitting of the nomination court.
Yet and rather astonishingly, there have been self-indulgent and in fact misleading claims whose pathetic fallacy has been that President Mugabe has been seeking to dissolve Parliament without consulting Tsvangirai in alleged violation of Section 20.1.3(q) of Schedule 8 of the Constitution. For example - in his embarrassingly failed bid to be joined as a fourth respondent in the by-elections case that was won by President Mugabe last Friday - Tsvangirai falsely told the High Court under oath that "I take note that the applicant (President Mugabe) has indicated that he will dissolve Parliament and call for harmonised election on or before or before the 29th June".
There was however, as there still is, no evidence either before the court or in the public domain of President Mugabe's alleged indication that "he will dissolve Parliament". President Mugabe has been very aware that Parliament will be dissolved by operation of the law on June 29. The only issue which has been exercising his mind as his sole constitutional responsibility about which he does not have to consult anyone and which he has not decided is when to fix as the date of the harmonised elections and as the date of the sitting of the nomination court.
In the circumstances - and with reference to the current discussions or debate on the matter - it is very clear that President Mugabe did not seek the dissolution of Parliament in the recent High Court case on by-elections which was decided in his favour last Friday as that would have been meaningless given the legal position that Parliament will be automatically dissolved on June 29 by operation of the law. Indeed the President has not sought any dissolution of Parliament and he will not seek it simply because he does not have to seek it at all in view of the compelling fact that the dissolution of Parliament is inevitably coming on June 29 by operation of the law whose effect does not require any consultation with anyone let alone Prime Minister Tsvangirai who appears to be dying to be consulted.
It is therefore necessary for everyone, especially the usual noise-makers who have a bad habit of speaking with open mouths and shut minds, to understand that Section 20.1.3(q) of Schedule 8 of the Constitution which provides that "The President may, acting in consultation with the Prime Minister, dissolve Parliament" is no longer a relevant law in practical terms because its GPA effect has been overtaken by events on the ground. This is because the impending dissolution of Parliament at midnight on June 29 does not have to be decided or proclaimed by President Mugabe as it will be automatically done by operation of the law.
Parenthetically - and for the avoidance of doubt as to why Section 20.1.3(q) of Schedule 8 of the Constitution was enacted - the dissolution of Parliament would have been an issue had it become necessary within the life of the GPA well ahead of the mandatory expiry of the constitutional life of the current Seventh Parliament on 29 June. When the GPA was signed by Zanu -PF and the two MDC formations on September 15, 2008 the general understanding was that the three parties would form a coalition government that would not last the full duration of the life of the Seventh Parliament with the expectation that there would be a general election some 24 months or so down the line. That eventuality which was quite possible would have necessitated an early dissolution of Parliament by President Mugabe which would have required him to consult Tsvangirai in terms of Section 20.1.3(q) of Schedule 8 of the Constitution which is a direct product of the GPA.
But with less than 100 days to go before the automatic dissolution of Parliament on June 29 by operation of the law, Section 20.1.3(q) of Schedule 8 of the Constitution is literally now water under the bridge. What remains to be decided and proclaimed by President Mugabe - without a constitutional or even GPA obligation to consult Tsvangirai - is the fixing of the date of the forthcoming elections and the date of the sitting of the nomination court for those elections. It is needless to say that the proclamation will of course have to take into account the constitutional fact that Parliament will stand automatically dissolved on June 29.
In the light of the foregoing, why have Tsvangirai, his media mouthpieces, his legal experts, his NGO affiliates and his donor founders and funders been falling on each other pretending that President Mugabe is contemplating dissolving Parliament without consulting Tsvangirai as Prime Minister when that is far-fetched nonsense with no legal basis? There are a number of reasons that explain the circus in Tsvangirai's embattled camp.
Gwisai observed that, "Obviously the advantage of the protest vote of 2008 for the MDC is gone. The corrupt behaviour of its councillors and (cabinet) ministers has eroded that" rhetorically asking, "How do you expect workers to be encouraged when we have Elton Mangoma, a senior MDC minister supervising a ministry that dismisses a workers' leader, Angeline Chitauro, for demanding a living wage when we have minister Paurina Mpariwa, failing for four years to issue minimum wages for domestic workers and other employees; when we have minister Lucia Matibenga refusing to meet public servants and the neo-liberal policies of finance minister Tendai Biti have not endeared the MDC with the people".
Echoing Gwisai's sentiments, another University of Zimbabwe law professor Lovemore Madhuku has boldly declared that "the MDC-T is no longer the people's party that we formed in 1999. We cannot follow a person (Tsvangirai) who thinks the MDC is his personal project".
When a political party is facing clear and present electoral defeat as is the MDC-T, it typically does strange and irrational things by clutching at straws. The MDC-T's false claim that President Mugabe is planning to dissolve Parliament without consulting Tsvangirai in terms of Section 20.1.3(q) of Schedule 8 of the Constitution which is now water under the bridge given the impending automatic dissolution of Parliament on June 29 is evidence of an embattled party facing electoral defeat.
Secondly - and because it is facing inevitable electoral defeat - it is now clear that Tsvangirai's MDC has been deserted by its legion of regime change experts that used to swamp its ranks. This is why Tsvangirai did not have quality legal or technical advice when he exposed himself by making an ill-advised court application in the by-election case which left him with egg on his bemused fat face.
Thirdly - and in the absence of his previous high powered foreign team of experts that have deserted him - Tsvangirai is having to make do with his clueless political advisor in the donor funded parallel structures of the Prime Minister's office, Alex Magaisa, who is a lawyer by training and who taught the subject at Kent University in Britain before joining Tsvangirai in the deep end but whose understanding of law and politics in Zimbabwe has left more than a lot to be desired by merchants of regime change.
Magaisa is the clumsy architect of Tsvangirai's embarrassing court application filed by Chris Mhike of Artherstone which had to be withdrawn in a huff before it was heard due to its fatal legal incompetence. Magaisa claimed in some online media last Friday that Tsvangirai's failed intervention to be included as the fourth respondent in the by-elections case won by President Mugabe was "a victory for good sense and democracy" and added falsely that "the Prime Minister correctly exercised his right to prevent the circumvention through judicial process of the general understanding that the setting of dates for harmonised elections is a matter of consultation between the principals of the GPA".
There are two notable features of Magaisa's comments that are quite disturbing given his office. One is that his proposition that "defeat is victory" is indeed uniquely MDC-T and it has been the root of electoral violence in Zimbabwe since the formation of the MDC-T in 1999. The other is that Magaisa's fatuous claim that there's a "judicial process of the general understanding that the setting of dates for harmonised elections is a matter of consultation between the principals of the GPA" proves that he is no better than a bush lawyer because there is no such judicial process and no law with that requirement. As already pointed out, the only law there is comes from Section 20.1.3(q) of Schedule 8 of the Constitution which provides that "The President may, acting in consultation with the Prime Minister, dissolve Parliament".
But this law is not the same as the law enabling the President to proclaim the date of the election and the date of the sitting of the nomination court. In any event, Section 20.1.3(q) of Schedule 8 is no longer a relevant law in practical terms because its GPA effect has been overtaken by events on the ground such that Parliament will be automatically dissolved on June 29 not as a result of any action by President Mugabe but by operation of the law. The fact that Magaisa does not know this tells a complete story about the chaos, confusion and incompetence that are ruling in the MDC-T ahead of the forthcoming elections and explains why knives are reported to be out for the besieged Magaisa who is finding it difficult if not impossible to figure out what to "gaisa".
Fourthly, the Magaisa saga and its court fiasco in the by-elections case last week raise serious questions about the internal state of affairs in the MDC-T and about why its secretary general - Tendai Biti - did not proffer better advice, counsel and legal leadership given that he is a lawyer of considerable standing in the national legal fraternity compared to Magaisa who has proven himself to be a clueless political disaster disguised as a Kent lawyer with little to show on the contested ground for his online reputation.
What was Tendai Biti's role as the MDC-T's secretary general and as a lawyer in his own right in the conceptualisation, construction and filing of Tsvangirai's ill-fated court application in the by-elections case that President Mugabe won? Did Biti agree with the patently unwise application? Why has Biti remained so loudly silent on this very important constitutional matter? Is Biti not aware that there's a difference between the dissolution of Parliament and the proclamation of an election date? More specifically, is Biti not aware that the dissolution of the Seventh Parliament will be by operation of the law on June 29 and that therefore President Mugabe is constitutionally enjoined to decide on the election date and to fix it along with the date of the sitting of the nomination court without consulting Tsvangirai?
While Biti ponders these and related questions, there is no need for him to explain the import of Section 20.1.3(q) of Schedule 8 of the Constitution which stipulates that "The President may, acting in consultation with the Prime Minister, dissolve Parliament". It is very clear that this provision whose consequence has been overtaken by the fact that the Seventh Parliament will be automatically dissolved on June 29 has nothing to do with "the proclamation of an election date" for the forthcoming elections or "the fixing of the date of the sitting of the nomination court" for the election. The dissolution of Parliament will be a done deal by operation of the law and this means Tsvangirai can forget about being consulted by the law while the proclamation of the date of the election in view of that dissolution is going to be done by President Mugabe as his constitutional prerogative whose exercise or discharge does not require him to consult Tsvangirai either in terms of the current Constitution, or the GPA or he new Constitution which will be used to run the forthcoming elections.
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Professor Jonathan Moyo is a political scientist and MP for Tsholotsho North (Zanu-PF)
Source - zimpapers
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