The Supreme Court ruling on elections: What are the implications

Speech delivered at Sapes Trust, Harare, Tuesday 4 June 2013 by Douglas Mwonzora

1. Introduction
The new Constitutional Court of Zimbabwe has made its first constitutional case ruling since the promulgation of the new constitution of Zimbabwe. However, before assenting to the constitution and apparently with this case in mind, President Mugabe swore in two judges to the Supreme Court and ipso facto into the Constitutional Court. The swearing in of the judges immediately before the commencement of the new constitution was clearly designed to avoid the more rigorous and transparent provisions of appointment of judges under the new constitution. It was also designed to pack the new court with what the schemers and think tanks in Zanu PF thought were judges sympathetic to Zanu PF.

2. Why the case was filed
The case was clearly sponsored by the chaos faction of Zanu PF to achieve three results. First, it was to force an election in June 2013. Second, it was to enable President Mugabe to singularly set the election date without consulting the Prime Minister as is required by the Global Political Agreement. Third, it was to force elections in Zimbabwe without the necessary reforms. Fourth, it was to avoid the election being in proximity of the UNWTO.

3. Evaluation of whether the objectives were achieved
It is apparently clear that the Zanu PF schemers basically failed in their ill-conceived endeavours. The sadistic strategists in Zanu PF wanted an election in June for two reasons. One was to trigger in the minds of the Zimbabwean voter the intimidating memories of the June 2008 violence and therefore achieve the harvest of fear.

The second was of course to avoid key reforms, especially the 30 day intensive voter registration exercise from being implemented and the voters roll scrutinized. However, the dates set by the Court, appropriately removes June as an election month.

Further, with political will and the necessary national and international pressure the reforms are possible in the period given. In disqualifying June as an election month, the constitutional court referred to the legal impossibility on account of the necessary pre-election formalities that had to be done.

 In other words, probably without intending it, the constitutional Court acknowledged the necessity of reforms before elections.

The Constitutional Court created dangerous precedent where the Court could set election dates on behalf of the executive. Instead of simply ordering the President to announce the election date by a particular date, the Court went on to set the period within which the election had to be held. Therefore the Zanu PF strategists inadvertently secured the usurpation of the powers of the President to set election dates. This could not have been their intention.

It is clear that the Zanu PF strategists did not want elections within the proximity of the UNWTO. However, the attempt by the Constitutional Court to balance the political and the legal effectively puts the election date in relative proximity to the UNWTO. The MDC has always been on record to say that it prefers elections before the UNWTO provided all reforms were completed.

It appears to have been the hope of the Zanu PF strategists that the Constitutional Court would pronounce that the President could act alone in setting the election dates without having to consult the Prime Minister as is required by the GPA. Tellingly, the Court avoided this question.

This means that even within the period set by the Court, the President has an obligation to consult the Prime Minister on the election date. Further the international community particularly SADC can still influence events in Zimbabwe. Information at hand suggests that there is an extraordinary summit on Zimbabwe on the 9th of June 2013.

The MDC position is that the issue is not so much on the date of the election. Rather the issue is the conditions under which the elections will be held. Therefore, key reforms that have a bearing on the freeness and fairness of elections have to be implemented first before the actual elections so as to avoid another disputed election in Zimbabwe.

First, the new constitution provides for a mandatory extensive registration exercise for a period of at least 30 days. That voter registration exercise should be followed by a period of inspection of the voters roll. The money for this exercise has already been secured and therefore the exercise must commence immediately. Because this is a constitutional requirement, it is not bendable.

Second, media reforms which should result in all contesting and interested parties having reasonably equal and fair access to the state media during the election campaigns as provided in chapter 7 of the new constitution must be implemented first. Because this is constitutional mandate it is not bendable. This reform does not take ages to implement.

Third, the spectre of violence has bedevilled all Zimbabwean elections since 1980. With this in mind, the new constitution makes it clear that Zimbabweans have a right to elections free from violence. Therefore mechanisms to ensure the total eradication of all forms of violence especially state sponsored violence must be put in place before the election. This is not bendable on account of its constitutional justification.

Fourth, Chapter 11 of our constitution provides for security sector reform. In terms of this chapter, members of the security services must not be partisan in that they should not campaign for or against a political party or cause. They are also obliged to respect and obey the fundamental rights of Zimbabwean people. Further, they should not take part in civilian institutions except in periods of public emergencies. Therefore, a code of conduct, governing the behavior of security services during elections has to be put in place before the elections. As the genes of this provision are the constitution this is not bendable.

Fifth, key legislation which have a bearing on the elections have to be amended in order to bring them in conformity with constitution. These include the Electoral Act, POSA , and AIPPA.

4. The Legal implications of the Judgement
Precedent can at law be a double edged sword. In this ruling clearly driven by political considerations the constitutional Court has made pronouncement and precedent that;

a.      It is permissible for any citizen to approach the Constitutional Court and assert a right no matter how remotely they are affected by the violation or potential violation. This is now different from the legal position that existed during the determination of the United Parties v Minister of Justice case.

b.      In interpreting constitutional provisions, the court must be liberal and lean more in favour of the violated or potentially. In other words, the interpretation favouring the violated will take precedent over that which favours the violator.

c.      All executive decisions or omissions are subject to judicial review. This means no executive action or inaction is beyond judicial reproach or enquiry.

d.      Zimbabwe must be brought back to constitutionalism. The state must never be allowed to fail to abide by constitutional or legal provisions.

5. Conclusion
The MDC's position that key reforms have to precede the elections is justified by the constitution and the judgement. All these reforms derive from clear constitutional provisions. As the Constitutional Court has ruled, Zimbabwe must never be allowed to ignore any of the provisions of its constitution. Therefore, the constitutional provisions upon which the MDC is basing its calls for reforms to be implemented before elections can be held. For the MDC, the issue is not so much about the date of elections. It is more about the conditions under which the elections are held.