CHIWESHE JP: I heard these three applications together. The
first two applications seek similar relief. The applicant in the third
application seeks to be joined as fourth responded in the first application.
The respondent in the second application is not opposed to the relief sought
and the application for joinder in the third application has since been
withdrawn. This judgment therefore relates in the main to the issues
raised in the first application.
In that application the applicant sought, on an urgent basis, a provisional
order in the following terms:
“TERMS OF THE FINAL ORDER SOUGHT
That the applicant be and is hereby excused from performance of the order
granted in Case No. HC11222 of 2012.
INTERIM RELIEF GRANTED
That the applicant be and is hereby excused from performance of the order
granted in case No. HC 11222 of 2012 provided that harmonised elections are
held on or before the 29th June 2013”
The respondents are opposed to the grant of this order.
The
background facts of this matter may be summarised as follows:
The three respondents were elected members of the National Assembly in the
2008 general elections. They were elected under the ticket of their party
the MDC and were dully sworn in as members of Parliament for Nkayi South,
Lupane East and Bulilima East constituencies respectively. They were
subsequently expelled from the party and their membership of parliament
terminated at the behest of that party.
As a
result the speaker of the House of Assembly proceeded to notify the applicant
of the three Parliamentary vacancies so created as required of him in terms of
s 39 (1) of the Electoral Act [Cap 2:13]. The applicant did not
take the necessary steps to fill the vacancies as required by law. The
respondents, under case number HC 1485/10, then approached this court for an
order compelling the applicant to gazette a date for elections to fill the
vacancies in the three constituencies. After hearing arguments from the
parties, NDOU J granted the relief sought in the following terms:
“IT IS ORDERED THAT:
1. The 3rd respondent (applicant
in the instant case) be and is hereby directed to
gazette a date for
elections within fourteen days of service of this order on him in
the following House of
Assembly constituencies, Nkayi South, Lupane East and
Bulilima East.
2. There is no order as to costs.”
The order was granted on 13 October 2011. The applicant, displeased
with that result, filed an appeal with the Supreme Court. After hearing
argument from counsel, the Supreme Court, under Civil Appeal No. SC 267 of
2011, made the following order on 12 July 2012:
“IT IS ORDERED THAT:
(1) The appeal is dismissed with costs.
(2) The order of the lower court is altered to read as follows-
“(a) The application is granted.
(b) The respondent (the President
of the Republic of Zimbabwe) is hereby
ordered to publish in the Gazette a notice ordering new elections to fill the
vacancies as soon as possible but by no later than 30 August, 2012.
(c) There will be no order
as to costs.”
Under case No. HC 9781/12 the applicant sought and was granted, by consent
of the parties, the following order:
“1. The period
within which to comply with the order granted in case No. SC 267/11
be and is hereby extended to the 1st
October 2012.
2. There be no order as to costs.”
This order is dated 30 August 2012.
Under case number HC 11222/12 the applicant sought and was granted another
extension to 31st March 2013. In the present application the
applicant seeks to be excused altogether from the performance of that order.
The
founding affidavit is deposed to by P.A. Chinamasa, the Minister of Justice and
Legal Affairs. It is to the following effect. The deponent is
authorised by the applicant to swear to that affidavit. The applicant was
ordered by this honourable court to publish in the Gazette a notice ordering
by-elections to fill three vacant House of Assembly seats in the Nkayi South,
Lupane East and Bulilima East constituencies by 30 August 2012. This date
was later extended to 31st March 2013. The applicant has to
comply with the said order by that date. The applicant is unable to
comply with the order for the following reasons. In terms of the Global
Political Agreement a referendum was held on 16 March 2013 to adopt a draft
constitution. The electorate voted to adopt that draft. A
Constitutional Amendment Bill has since been gazetted. The bill will be
debated in both Houses of Parliament. It is anticipated that the bill
will take 4 days to complete its passage through Parliament. Thereafter
the bill should be assented to by the President, who will enact it into
law. In terms of para 3 (1) of the Sixth Schedule to the draft
Constitution, provisions of the new Constitution relating to elections will be
brought into effect. Thereafter amendments to the Electoral Act will be
gazetted with a view to align the electoral laws with the new
Constitution. It is expected that Parliament would take 4 days to debate
and pass these amendments leading to assent by the President. Thereafter
the electoral process will commence. It is anticipated that a
proclamation for harmonised elections will be published immediately after 8 May
2013. In terms of the Constitution the life of Parliament terminates on
29 June 2013 by which date harmonised elections must be held.
According
to the applicant it does not make economic or practical sense to conduct a
parallel process leading to the holding of by-elections about the time it is
anticipated to hold harmonised elections. Compliance with the order to
hold by-elections in the three constituencies is therefore no longer feasible
as a general election is now imminent. It is for these reasons that the
applicant seeks the court's indulgence to be excused from performance of the
order requiring him to publish a proclamation for by-elections in the three
constituencies by 31st March 2013.
The
opposing affidavit is deposed to by the 1st respondent Abedinico
Bhebhe. It raises a number of preliminary issues. It is averred
that the application seeks relief that is beyond the court's jurisdiction as
the court has no power “to suborn, condone or in the very least countenance”
disobedience of its order. The respondents contend that the court has
become functus officio. Whereas in the past the applicant has
sought extensions within which to abide by the order, what is presently sought
is a different relief which the court cannot entertain.
The
respondents further argue that the application lacks urgency and should on that
basis be dismissed without further ado. The authority of P.A. Chinamasa
to depose to the founding affidavit on behalf of the applicant is also
queried. It is alleged that the deponent to the founding affidavit is
acting on a frolic of his own and for that reason the application must
fall. The respondents also relate to what they call “speculation”
in the founding affidavit with regards dates for general elections and the time
lines necessary for the debate and adoption by Parliament of the draft
Constitution and proposed amendments to the electoral law. However in
view of the abandonment by the applicant of that part of its prayer touching on
the holding of general elections, these averments are no longer in issue.
The
respondents also allege lack of probity on the part of the applicant stating
that the applicant has all along lied to the court in seeking extensions under
the pretext of lack of funding when in fact it had contrived to bring the
present application at an opportune moment. That avers the respondents,
constitutes abuse of court process, and, for that reason the application should
not be heard.
On the
merits the respondents insist that they have vested rights to participate in
the by-elections regardless of the fact that general elections may be
imminent. Besides it is argued that there is no guarantee that general
elections will be held by 29 June 2013 and in any event the applicant has not
told the court what would happen if general elections are not held by that
date. They insist that the court order to hold by-elections must be
obeyed. It should not be sacrificed on the alter of economic or
practical sense.
The
applicant has filed a detailed answering affidavit. His averments may be
summarised as follows:
It is competent for the court to hear an applicant who seeks to have an
order of court declared brutum fulmen. In hearing such
application the court cannot be said to be countenancing disobedience with its
order. The court thus has jurisdiction to determine this application.
The applicant
wishes to be excused from compliance with the court order on the basis that
Parliament will stand dissolved on 29 June 2013 and that harmonised general
elections will constitutionally have to be held by that date.
The
applicant also argues that the order to hold by-elections obliges the applicant
to perform a duty. It does not, as contended by the respondents thereby
create any vested rights in their favour. All that respondents have is an
interest that the applicant will perform his duty so that by-elections can be
held.
Further
the applicant takes exception to the averments by the respondents that he has
“routinely lied” to this honourable court in previous proceedings pertaining to
this matter and challenges the respondents to put up facts in support of that
accusation. Applicant insists he has at all times acted in good faith in
both the present and past applications.
The
applicant reiterated his position that the present parliament will stand
dissolved on 29 June 2013 and harmonised elections, if not held by then, will
remain imminent.
He also
argued that the matter under consideration is of national importance and for
that reason deserves urgent attention. The deponent scoffs at suggestions
that he is on a frolic of his own acting without or outside the authority of
the applicant.
The
applicant also explains why he is unable to comply with 31st March
2013 deadline as previously undertaken. He says he had previously
envisaged that the referendum on the draft constitution would have taken place
by the first week of November 2012. That did not materialise for reasons
beyond his control. It then became difficult to predict progress towards
harmonised elections.
It became
apparent that the parties were not agreed as to when the present parliament
would stand dissolved. As I considered this point of crucial importance I
directed that we adjourn in order that the parties prepare and submit heads of
argument on that point. At that stage Adv Machaya (for the
applicant) had argued that parliament will stand dissolved at midnight 28 June
2013 whilst AdvMpofu (for the respondents) was of the view that the
term of Parliament would end on 29 October 2013.
I heard
their arguments the next day. Adv Machaya's argument is in line
with the provisions of s 66 (4). That section reads as follows:-
“Parliament unless sooner dissolved, shall last for five years, which period
shall be deemed to commence on the day the person elected as president enters
office in terms of section 28 (5) after an election referred to in section 28
(3) (a), and shall then stand dissolved:
Provided that, where the period referred to in this sub section is extended
under sub section (5) or (6), Parliament, unless sooner dissolved, shall stand
dissolved on the expiration of the extended period.”
It is
common cause that applicant was sworn in as President on 29 June, 2009.
The life of the present Parliament must be deemed to run from that date, for a
period of five years. Calculated from that date there is no doubt
whatsoever that the life of the present Parliament shall end on 29 June
2013. On that date Parliament shall stand dissolved by efluxion of
time. It is however permissible to extend the life of Parliament beyond
that date on the grounds provided under s 63 (5) and (6) of the
Constitution. These sections allow for that extension only if the country
is at war or under a declared state of public emergency. No such situation
presently obtains in the country. I have no reason to believe otherwise
today or any time in the near future. I am convinced therefore that the
life of the present Parliament will end by operation of law on 29 June
2013. In other words the Parliament, to which the respondents aspire to
be elected, shall cease to exist on that date.
Advocate Mpofu
(for the respondents) could hardly argue against this interpretation of
provisions so clear and unambiguous. Instead he sought, without
much success, to emphasise the possibility of an extension of the five year
period due to the calamities referred to under section 63 (5) and (6).
His thrust in that regard is understandable given the intimation I had made to
the parties, namely that if Parliament stands dissolved on 29 June 2013, it may
not be prudent to conduct by-elections immediately before that date and that
if, on the other end, dissolution occurs on 29 October 2013 (as argued by the
respondents) then it may be reasonable to assume that by-election may be held
in accordance with the order of this court given under case number HC 11
222/12.
It is
illustrative to demonstrate by way of time lines what would obtain if one were
to find in favour of the respondents and direct that by-elections be conducted
forthwith. Adv Machaya has indicated that the general time line
from the date of proclamation would be a maximum of 71 days in terms of s 38
(b) (i) and (ii) of the Electoral Act [Cap 2:13].
That
assertion has not been challenged by the respondents save to state that in
terms of the Electoral Law, by-elections may be held not less than 21 days
before dissolution of Parliament. That provision is permissive and not
mandatory. Using the maximum 71 day period Adv Machaya was able
to show that, assuming the relevant proclamation is published on 5 April 2013,
the by-elections would be held on Saturday 15 June 2013 and the winners would
be sworn in on Monday 17 June 2013. The winners would then sit in the
House of Assembly only up to 29 June 2013, a period of 12 days!
One may
also consider the following scenario. If the proclamation were to be
published on 31 March 2013, in terms of s 38 (1) (b) (i) of the Electoral Act,
Nomination Court must be held not less than 14 days after that publication and
not more than 21 days after publication. This means Nomination
Court would sit between 15 and 19 April 2013.
In terms
of s 38 (1) (b) (ii) of the Electoral Act [Cap 2:13] polling must be
held not less than 28 days and not more than 50 days after nomination
day. This means therefore that by-election would be held on 13 May at the
earliest or 4 June 2013 at the latest. If held on 13 May 2013, the
winners of that by-election would enjoy their newly found status! If held
on 4 June 2013, that period is reduced to a mere 25 days!
These
time lines, whose accuracy is subject to scrutiny, clearly demonstrate that
there is merit in applicant's submissions that it no longer makes practical
economic sense to insist that these by-elections be held at all costs.
The court
is informed that apart from the three House of Assembly constituencies under
consideration there are further vacancies in other constituencies, namely 16 in
the House of Assembly, 12 in the Senate and 164 council wards. Should
this application fail the country would need to hold by-elections to fill these
vacancies. Again the winners would be in their seats for a very short
period of time. The scale and extent of these by-elections suggests that
enormous resources would need to be mobilised. Adv Mpofu argues
that by- elections will be held under consideration and no other. The
truth of the matter however is that if not granted the relief he seeks, the
applicant will be obliged to hold by-elections in all vacant constituencies and
wards.
In the
final analysis I agree with the applicant that compliance with the existing
order is no longer reasonable or practical. Adv Mpofu (for the
respondents) argues that this court, being a court of law, has no jurisdiction
to grant relief based on equity and other practical considerations. I
disagree. This is as much a court of law as it is a court of justice and
equity. In any event it is trite that this court has inherent jurisdiction
to manage the execution of its own orders, ensuring whenever necessary that the
execution of the same does not lead to absurd or irrational outcomes.
The
respondents raised a number of preliminary points to do with urgency,
jurisdiction and others. I dealt with similar or the same preliminary
matters in previous rulings in this matter. These preliminary objections
stand dismissed.
It was
for these reasons that I found for the applicant. The respondent in the
second application did not oppose the application. For that reason I also
found in favour of the applicant.
Accordingly I ordered as follows:
1. That the applicant be and is hereby excused
from performance of the order of this honourable court granted on 2
October 2012 under case number HC 11222/12.
2. That the applicant be and is hereby excused
from performance of the order of this honourable court granted on 16
October 2012 under case number HC 11962/12.
Civil Division of the Attorney General's office, applicant's legal
practitioners in the first and second case
Zimbabwe Lawyers for Human Rights, respondents' legal practitioners
in the first case
Mambosasa Legal Practitioners, respondent's legal practitioners in
the second case
Atherstone & Cook,
applicant's legal practitioners in the third case
