CHIDYAUSIKU
CJ:
This
is an application brought under section 24(1) of the Constitution of
Zimbabwe (hereinafter “the Constitution”) on the basis that the
applicant's rights enshrined in sections 18(1) and 18(1a) have been
contravened.
The
Parties
The
applicant is a citizen of Zimbabwe domiciled in this country and has
always regarded this country as his only and permanent home. He is a
registered voter in Zaka East Parliamentary Constituency and also a
member of the non-governmental organisation, the Centre for Election
Democracy in Southern Africa, based in Harare.
The
first respondent is the President of Zimbabwe, Robert Gabriel Mugabe,
who is cited in his official capacity and as the office-bearer
responsible for fixing the date for Parliamentary, Presidential and
local authority elections (hereinafter called “the harmonised
elections”). He is also cited in his capacity as a principal of the
Inter-Party Political Agreement (commonly referred to as the Global
Political Agreement (“GPA”) between his political party, the
Zimbabwe African National Union (Patriotic Front) ("ZANU-PF")
and the two formations of the Movement for Democratic Change ("MDC"),
referred to in Schedule 8 to the Constitution.
The
second respondent is Morgan Richard Tsvangirai, who has been cited in
his capacity as the Prime Minister of Zimbabwe, who also is a
signatory to the “GPA”, representing his formation of the MDC.
The
third respondent is Arthur Guseni Oliver Mutambara, who has been
cited as the Deputy Prime Minister of Zimbabwe and also due to the
fact that he is a signatory to the “GPA”.
The
fourth respondent is Welshman Ncube, a Minister in Government and
cited herein in his capacity as the representative of the other
formation of the MDC, which organisation is a party to the GPA and is
represented in the current coalition government.
The
fifth respondent is the Attorney-General, who has been drawn into
these proceedings in view of their constitutional nature and in his
capacity as the principal legal advisor to the Government.
Background
On
2 May 2013 the applicant issued an urgent Court application against
the above five respondents.
Before
any opposition was filed to the court application, the applicant was,
on 6 May 2013, directed by the Registrar of the Supreme Court of
Zimbabwe to file a separate urgent Chamber application seeking leave
for the urgent hearing of his Court application, if such was his
wish.
The
application proceeded to do so in case Number SC 157/2013. This
urgent Chamber application was subsequently heard on 15 May 2013. On
17 May 2013 the order sought by the applicant in the urgent Chamber
application was granted.
The
principal application was opposed by the first, second and fourth
respondents.
The
applicant subsequently filed a replying affidavit as well as a notice
of an amendment of the draft order to his principal application.
The
amended order sought is as follows:
"(1)
The First Respondent be and is hereby directed to forthwith proclaim
an election date for a Presidential election, general election and
elections for members of the governing bodies of local authorities in
terms of section 58(1) of the Constitution of Zimbabwe.
(2)
The elections referred to in paragraph 1 hereof shall be conducted no
later than the 30th day of June 2013.
ALTERNATIVELY
The
elections referred to above shall be conducted no later than (the)
25th
day of July 2013.
(3)
Any party (parties) who oppose(s) this application shall bear the
costs of this suit jointly and severally, the one paying the other to
be absolved."
Read
together, the papers filed of record seem to pose the following as
issues which fall for determination:
(a)
Whether the applicant has locus standi to approach this Court in
terms of section 24(1) of the Constitution of Zimbabwe;
(b)
When do harmonised general elections fall due in terms of the laws of
Zimbabwe?
(c)
Whether the applicant has made out a case for the order sought.
Each
issue will now be dealt with in turn.
(a)
Whether the applicant has locus standi to approach the Supreme Court
in terms of section 24(1) of the Constitution
The
applicant avers in his founding affidavit that his application is
premised on section 24(1) of the Constitution, which provides as
follows:
“If
any person alleges that the Declaration of Rights has been, is being
or is likely to be contravened in relation to him… then without
prejudice to any other action with respect to the same matter which
is lawfully available, that person… may apply to the Supreme Court
for redress.”
Essentially,
the applicant contends that his right to the protection of the law in
terms of section 18(1) of the Constitution has been, is being and is
likely to continue being violated.
He
asserts that the failure by the first respondent to fix the date for
the holding of Presidential, Parliamentary and local government
elections when, at law, according to him, the said elections are
looming and are now due, violates his right to the protection of the
law.
He
further claims protection of the law as a person duly entitled to
vote, with a vested right to vote in an election at a stipulated
time.
He
then proceeds to demonstrate his fears of the real or at least
perceived violation of his Constitutional rights, as follows:
“The
first respondent for reasons that I am not clear about, has not
carried out his functions in fixing a date for the elections, even as
the expiry of Parliament looms dangerously close. His inaction will
lead to a state where Zimbabwe may, in fact, run unconstitutionally.
The misleading signals that have been sent by some of the respondents
cited herein have been the cause for great concern and may be an
indication, coupled with (the) first respondent's inaction, that
come June 29, 2013, a general election will not have been called, and
Zimbabwe will be hobbling along illegally, without a Parliament.
No
interpretation whatsoever of the Constitution could ever validate the
existence of a situation of the State without the legislative arm of
Government. Such an unprecedented situation would be a crippling
negation of a fundamental tenet of our democracy which is a sine qua
non of our constitutional order.”
The
applicant further bases his locus standi on section 18(1a) of the
Constitution which, together with section 18(1), states as follows:
"18
Provisions to secure protection of law
(1)
Subject to the provisions of this Constitution, every person is
entitled to the protection of the law.
[Subsection
amended by section 3 of Act No. 4 of 1993 (Amendment No. 12)]
(1a)
Every public officer has a duty towards every person in Zimbabwe to
exercise his or her functions as a public officer in accordance with
the law and to observe and uphold the rule of law.
[Subsection
inserted by section 4 of Act No. 1 of 2009 (Amendment No. 19)]."
A
'public officer' is defined as “a person holding or acting in
any public office” and 'public office' is defined as “a paid
office in the service of the State".
Thus,
section 18(1a) clearly confers a right on any and every Zimbabwean
who is affected by a failure to uphold the law to approach this Court
in terms of section 24(1).
The
objections by the second and fourth respondents to the applicant's
right to approach this Court for relief are based on a restrictive
approach to locus standi in the pre-2009 period and a failure to
appreciate that the 2009 Amendment No.19 has thrown wide open the
right to seek relief in terms of section 24(1) to any and every
citizen who is affected by a failure by a public officer to uphold
the law.
Hence,
the applicant states his apprehension of likely infringement of his
rights under section 18(1a) as follows:
“I
also persist that the absence of Parliament is not only
unconstitutional, and thus lead to a rule by decree, but will also
lead to a paralysis in governance. In addition, the fact of the
fourth respondent's insistence that elections can be held as late
as 30 October 2013, coupled with his insistence that the
Parliamentary vacuum that will eventuate between 29 June 2013 and 30
October 2013 is legal amounts to a violation, or likely violation, of
my fundaments rights under the Bill of Rights.”
The
pre-2009 discourse pertaining to the need to establish a right
infringed or likely to be contravened under Chapter 3 before having
recourse to section 24(1) is captured in the following opinion in
United Parties v Minister of Justice, Legal and Parliamentary Affairs
and Ors 1997 (2) ZLR 254 (S):
“Much
turns on the meaning of the phrase 'likely to be contravened'.
Certainly, it does not embrace any fanciful or remote prospect of the
Declaration of Rights being contravened. Nor does it refer to the
Declaration of Rights being liable to contravention… Rather it
means a reasonable probability of such a contravention occurring.”
In
Tsvangirai v Registrar General and Ors 2002 (1) ZLR 268 (S) the
following was said:
“The
first observation to be made is that a bald, unsubstantiated
allegation will not satisfy the requirements of the section. The
applicant must aver in his founding affidavit facts, which if proved
would establish that a fundamental right enshrined in the Declaration
of Rights has been contravened in respect of himself …”
(p25G–271a)
And:
“Although
in the founding affidavit the applicant did not specify which section
of the Declaration of Rights was contravened…. I do not think that
the failure to do so is fatal (especially as) the omission was
remedied by the heads of argument filed by counsel for the
applicant….” (p276E-F)
See
also: Catholic Commission for Justice and Peace in Zimbabwe v
Attorney General and Ors 1993 (1) ZLR 242 (S), and Law Society of
Zimbabwe and Ors v Minister of Finance 1999 (2) ZLR 213 (S).
Even
under the pre-2009 requirements, it appears to me that the applicant
is entitled to approach this Court for relief.
Certainly,
this Court does not expect to appear before it only those who are
dripping with the blood of the actual infringement of their rights or
those who are shivering incoherently with the fear of the impending
threat which has actually engulfed them. This Court will entertain
even those who calmly perceive a looming infringement and issue a
declaration or appropriate order to stave the threat, moreso under
the liberal post-2009 requirements.
(b)
When do harmonised general elections become due?
It
is common cause amongst all the parties that Parliament shall stand
dissolved, by the effluxion of time, on 29 June 2013.
Whilst
the papers before this Court are voluminous and at times
unnecessarily argumentative, the issue before this Court is in fact a
simple one, which can be reduced to one question: “When, after the
accepted dissolution of Parliament by the effluxion of time in terms
of the Constitution should the harmonised elections be held?"
The
response to this rather simple and straightforward question has
elicited contradictory responses from the second and fourth
respondents on the one hand, and the applicant, on the other. The
responses from the second and fourth respondents also show a serious
divergence of opinion between them.
According
to the second respondent, who is the Prime Minister and an important
part of the Executive:
“What
is plain from section 58(1) of the Constitution of Zimbabwe, as read
with other relevant sections, is the fact that if the terms of
Parliament, local government authorities, and of the President expire
on 29 June 2013 through the natural passage of time (as opposed to
induced dissolution or prorogation) elections must be conducted
within four (4) months of the automatic dissolution of Parliament.
(emphasis is added)”
The
fourth respondent, who himself is a Minister of Government and leader
of a party to the Global Political Agreement, takes the following
similar position when he states:
“Alternatively,
if the President does not dissolve Parliament and allows it to
automatically dissolve by operation of law on the last day of its
five year term, in that event the President must cause an election to
be held within four months of the date of the automatic dissolution
of Parliament.” (emphasis added)
He
then goes on to say:
“The
Constitution permits that an election be held anytime within four
months after the dissolution of Parliament by operation of law at the
expiration of its five year term and hence that Constitution, by so
providing, contemplates and allows that there may be no Parliament
between its automatic dissolution and the holding of an election
within four months of that dissolution.” (emphasis added)
The
first respondent disagrees with the interpretation by the second and
fourth respondents, saying it is not supported by the Constitution or
the canons that govern its interpretation. Instead, the first
respondent agrees with the interpretation placed by the applicant on
sections 58 and 63 of the Constitution.
Section
58(1) simply states:
"(1)
A general election and elections for members of governing bodies of
local authorities shall be held on such day or days within a period
not exceeding four months after the issue of a proclamation
dissolving Parliament under section 63(7) or, as the case may be, the
dissolution of Parliament under section 63(4) as the President may,
by proclamation in the Gazette, fix.”
Now,
it is clear that section 58(1), read in its ordinary sense, deals
with the timing of elections or the fixing of dates for elections by
proclamation.
If
one were to pose the question “when are harmonised general
elections to be held?” and seek an answer from the above quoted
provisions of section 58(1), two possible answers emerge, depending
on punctuation and emphasis and are juxtaposed below as READING 'A'
and 'B':
READING
'A'
"PART
6
Elections
and Sessions
58
Elections
(1)
A general election and elections for members of the governing bodies
of local authorities shall be held on:
(i)
Such day or days within a period not exceeding four months after the
issue of a proclamation dissolving Parliament under section 63(7); or
(ii)
As the case may be, the dissolution of Parliament under section 63(4)
as the President may, by proclamation in the Gazette, fix."
READING
'B'
"PART
6
Elections
and Sessions
58
Elections
(1)
A general election and elections for members of the governing bodies
of local authorities shall be held on such day or days within a
period not exceeding four months after:
(i)
The issue of a proclamation dissolving Parliament under section
63(7); or
(ii)
As the case may be, the dissolution of Parliament under section 63(4)
as the President may, by proclamation in the Gazette, fix."
There
could be any number of other variations the section 58(1) text can be
broken into, but the two scenarios above will suffice for the purpose
of this case.
Both
Reading 'A' and Reading 'B' answer to the question when
elections are to be held but with one putting the emphasis on the
preposition 'on' and the other on 'after'.
Both
interpretations are compelling.
Adopting
one interpretation or the other results in starkly different
outcomes. In one case elections must be held within the life of
Parliament. In the other case, elections may be held up to four
months after the dissolution of Parliament.
A
Court faced with competing possible interpretations of a
constitutional provision must call into aid principles or canons of
construction. In this regard FIELDSEND CJ had this to say in Hewlett
v Minister of Finance 1981 ZLR 571:
“…
in
general the principles governing the interpretation of a Constitution
are basically no different from those governing the interpretation of
any other legislation. It is necessary to look to the words used and
to deduce from them what any particular section, phrase or word
means, having regard to the overall context in which it appears.”
Accordingly,
section 58(1) must be examined, not in isolation, but having regard
to the overall context in which it appears.
In
this regard it is important to immediately quote section 63 referred
to in this provision, emphasising the key subsections 63(7) and
63(4):
"63
Prorogation or dissolution
(1)
The President may at any time prorogue Parliament.
[Subsection
substituted by section 6 of Act No.23 of 1987 (Amendment No.7)]
(2)
Subject to the provisions of this Constitution, the President may at
any time dissolve Parliament.
[Subsection
substituted by section 6 of Act No.23 of 1987 (Amendment No.7)]
(3)…
[Subsection
repealed by section 6 of Act No.23 of 1987 (Amendment No.7)]
(4)
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 subsection is extended
under subsection (5) or (6), Parliament, unless sooner dissolved,
shall stand dissolved on the expiration of that extended period.
[Subsection
inserted by section 14 of Act No.11 of 2007 (Amendment No.18)]
(5)
At any time when Zimbabwe is at war, Parliament may from time to time
extend the period specified in subsection (4) by not more than one
year at a time:
Provided
that such period shall not be extended under this subsection for more
than five years.
(6)
At any time when there is in effect a declaration under section
31J(1), Parliament may from time to time extend the period specified
in subsection (4) by not more than six months at a time:
Provided
that such period shall not be extended under this subsection for more
than one year.
[Subsection
amended by section 26 of Act No.23 of 1987 (Amendment No.7)]
(7)
Subject to the provisions of subsection (4), any prorogation or
dissolution of Parliament shall be by proclamation in the Gazette
and, in the case of a dissolution, shall take effect from the day
preceding the day or first day, as the case may be, fixed by
proclamation in accordance with section 58(1) for the holding of a
general election.
(8)
On the dissolution of Parliament all proceedings pending at the time
shall be terminated and accordingly every Bill, motion,
petition or other business shall lapse." (emphasis added)
Although
on the face of it sections 58 and 63 deal with distinct but related
constitutional matters, the fixing of dates for elections on the one
hand and the life of Parliament on the other, the inter-relatedness
of these matters creates a maze of back and forth cross-referencing
between section 58(1) and sections 63(4) and 63(7).
These
provisions are also subject to stipulations in the Constitution
itself and the Electoral Act especially with regard to time limits.
However,
there are some conclusions that can be teased out of this maze to aid
the interpretation of the provision in question:
(a)
There must be a proclamation fixing the dates for elections which is
issued by the President in the Gazette according to sections 58(1)
and 63(7).
(b)
Section 63(7) is subjected to the provisions in section 63(4) in the
sense that the President may not dissolve Parliament and fix dates
which fall outside the life of Parliament. In other words, elections
following a Presidential dissolution of Parliament must be held
before the expiry of the life of that Parliament.
There
are other provisions in section 64(4) which might have necessitated
the subjection of section 63(7) to it, viz. that dissolution of
Parliament following expiry of its extended period is automatic,
whereas section 63(7) requires all other dissolutions to be by
proclamation.
(c)
The fixing of election dates must take into account the mandatory
time limits set out in the Constitution and the Electoral Law.
From
the above conclusions, one can now pose a number of useful questions
and try to answer them.
What
is this proclamation that is required for both the Presidential and
the automatic dissolution of Parliament? What is its purpose?
From
a common sense position one could say a proclamation is issued in
advance, giving a period of notice and time prior to the Presidential
or automatic dissolution in order to afford the electoral authorities
and the public time to prepare for the elections.
That
appears to also coincide with the legal requirements teased above.
However,
to get a real life 'feel' of this phenomenon called
'proclamation' I dug up Statutory Instrument 7A of 2008, which,
of course, the Court is perfectly entitled to take judicial notice
of.
It
was issued on 24 January 2008 dissolving Parliament “with effect
from midnight, the 28th March 2008” thus giving the electoral
authorities and the public slightly over two months to prepare for
the elections.
In
that case, the night of dissolution was perfectly followed by the day
or days of elections as stipulated in section 63(7). The proclamation
goes on to fix the dates, places and times of the sitting of the
nomination courts and the presiding officials thereof throughout the
country for Presidential, Parliamentary and local government
elections.
This
proclamation was issued by the President using his discretion to
dissolve Parliament and call for elections in terms of section 63(7).
It
is important to note that the proclamation is prospective, not
retrospective, pointing to a date in future when Parliament will
stand dissolved and complying with all statutory time limits.
Since
the date for the automatic end of the life of Parliament is known in
advance, it would be perfectly feasible for a President to anticipate
such a date and issue a similar proclamation announcing that
Parliament shall stand dissolved by midnight of that day, followed by
elections on the following day or days and complying with all
statutory time limits.
Not
only would it be feasible, but, in my view, it would be the proper,
constitutional and legal thing to do.
In
fact, the question may be asked: since the date of automatic
dissolution is known in advance, what is the purpose of granting the
President an additional four months within which to proclaim the
dates for elections after dissolution of Parliament?
Is
it to shield that decision from Parliamentary scrutiny or to reward
the President for having allowed Parliament to run its full course,
by granting the Executive four months to rule by decree?
The
mind boggles at this strange effect of adopting Reading 'B' of
section 58(1).
The
second scenario of interpreting section 58(1) also implies that the
President must wait until the life of Parliament would have expired
in terms of section 63(4) and then issue a proclamation recognising
that fact and fixing dates within four months of the event.
The
expiry of the life of Parliament would have passed silently without
notice to all concerned but with a dramatic effect of creating a
deformed State without Parliament for up to four months.
As
would be shown below, this would lead to an absurdity and glaring
anomalies.
There
are two approaches open to a Court faced with apparent absurdities in
the construction of statutes - the narrow and the wider approach.
The
narrow approach was articulated in The Queen v Judge of the City of
London Court [1892] QBD 273 by LORD ESHER as follows:
“If
the words of an Act are clear, you must follow them, even though they
lead to a manifest absurdity. The Court has nothing to do with the
question whether the legislature has committed an absurdity. In my
opinion the rule has always been this, if the words of an Act admit
of two interpretations, then they are not clear and if one
interpretation leads to an absurdity, and the other does not, the
Court will conclude the legislature did not intend to lead to an
absurdity, and will adopt the other interpretation.”
Under
the narrow approach, the Court chooses between the two possible
interpretations the one which does not lead to an absurdity.
In
this case, it would be the first interpretation or Reading 'A' of
section 58(1).
In
Venter v Rex 1906 TS 910 at pp914-915 INNES CJ expressed the wider
approach, thus:
“That
being so, it appears to me that the principle we should adopt may be
expressed somewhat in this way: that, when to give the plain words of
the statute their ordinary meaning would lead to absurdity so glaring
that it could never have been contemplated by the legislature, or
where it would lead to a result contrary to the intention of the
legislature, as shown by the context or by such other considerations
as the Court is justified in taking into account, the Court may
depart from the ordinary effect of the words to the extent necessary
to remove the absurdity and to give effect to the true intention of
the legislature.”
According
to the “wider approach” the Court has a broad discretion in
removing an absurdity being guided ultimately by the intention of the
Legislature or in constitutional terms by the intention of the
framers of the supreme law.
Once
an ambiguity or absurdity has been established, it would appear that
the proper approach to adopt would be the wider one, where the Court
calls into aid historical, schematic, teleological and purposive
approaches to interpretation.
In
the case of Buchanan & Co v Babco Ltd (C.A.) [1977] QBD 208 at
213 LORD DENNING followed precisely this method of interpretation
long adopted by the European Court of Justice at Luxembourg, thus:
“They
adopt a method which they call in English by strange words, at any
rate they were strange to me, the 'schematic and teleological' method
of interpretation. It is not really so alarming as it sounds. All it
means is that the judges do not go by the literal meaning of the
words or by the grammatical structure of the sentence. They go by the
design or purpose which lies behind it.
When
they come upon a situation which is to their minds within the spirit,
but not the letter, of the legislation, they solve the problem by
looking at the design and purpose of the legislation - at the effect
which it was sought to achieve.
They
then interpret the legislation so as to achieve the desired effect.
This
means that they fill in gaps, quite unashamedly, without hesitation.
They ask simply: what is the sensible way of dealing with this
situation so as to give effect to the presumed purpose of the
legislation?
To
our eyes, shortsighted by tradition, it is legislation, pure and
simple. But to their eyes, it is fulfilling the true role of the
courts. They are giving effect to what the legislature intended, or
may be presumed to have intended. I see nothing wrong with this.
Quite the contrary.”
If
the framers of the Constitution wanted Zimbabwe to function without a
Parliament for four months as suggested by the second and fourth
respondents, they surely would have said so in clear and explicit
terms and they would not have left this to speculation and
interpretation. The Constitution itself states emphatically in
section 52:
“Provided
that… no law shall be deemed to amend, add to or repeal any
provision of this Constitution unless it does so in express terms.”
Therefore,
the only interpretation that can be given to this section is one that
favours constitutionalism.
It
is common cause that the current Constitution is based on the
fundamental principles of separation of powers between the three arms
of State: the Executive, the Judiciary and the Legislature. This
principle is entrenched in the Constitution in the various sections
which state in peremptory terms that there shall be a President, a
Parliament and a Judiciary.
Nowhere
in the Constitution is there an excuse to function without any one of
these branches for an extended period of time.
Whatever
exceptions are dictated by transitional imperatives of the going out
and coming in of governments, these are always kept at the minimum
possible.
In
fact, so important are the tripartite pillars of State that even in a
time of emergency or war, these three institutions are preserved. See
subsections 63(5) and (6).
The
principle of constitutionalism which we referred to earlier, is
embodied in section 3 of the Constitution which states:
“This
Constitution is the supreme law of Zimbabwe and if any other law is
inconsistent with this Constitution that other law shall, to the
extent of the inconsistency, be void.”
If
one applies both the doctrine of separation of powers and
constitutionalism, it is inconceivable that an interpretation that
permits or allows for any extended period without one or other arms
of State, in this case Parliament, can be sustainable.
To
exist too long without a Parliament would be tantamount to shredding
the Constitution and inviting a state of lawlessness and disorder. It
would, with respect, be tantamount to an “annihilation” of the
Constitution, in the words of MALABA JA (as he then was) in Mike
Campbell (Pvt) Ltd and Another v Minister of Lands and Another 2008
(1) ZLR 17 (S).
If
section 58 is a repeal or amendment of the peremptory requirement
that “there shall be a Parliament" it should have said so
explicitly.
It
does not do this.
It
is also instructive to note that in terms of section 158 of the new
in-coming Constitution the timing of elections is such that they must
be held before the expiry of the life of Parliament, thus:
"158
Timing of Elections
(1)
A general election must be held so that polling takes place not more
than –
(a)
Thirty days before the expiry of the five-year period specified in
section 143." (emphasis added)
The
submission that the mischief of rule by decree consequent upon no
elections being held by 29 June 2013 is obviated by the continuation
in office of both the President and Cabinet in terms of section 29(1)
of the Constitution totally misses the point that what is at issue is
rule by the Executive in the absence of the checks and balances of a
Parliament.
It
matters not whether the rule by decree is that of a single individual
or that of a group, such as a Cabinet. The purpose of this section is
to allow a smooth handover between the retiring and the incoming
Executive in the shortest possible time.
Its
existence is also further proof of the need to ensure that the period
between the dissolution of one Parliament and the inauguration of the
next is as short as possible.
Furthermore,
the applicant is correct in submitting that the fourth respondent
fails to appreciate that the overarching philosophy in section 31E(2)
is in fact constitutionalism and not proof that governance without
Parliament is acceptable.
The
section is an exhortation to anyone appointed as Vice-President,
Minister or Deputy Minister (from outside Parliament) to become
Members of Parliament within three months.
The
only time when such officials are allowed to exceed those three
months is when during that period Parliament is dissolved (thus
frustrating him or her from becoming a member). Only then can the
period be extended to “until Parliament first meets after
dissolution”.
In
fact, this provision presupposes the prior existence of Parliament
and not its wholesale absence and caters for a few desired members of
the Executive who may not have made it to Parliament.
It
is also instructive to have recourse to the history of this
provision.
The
original provision stated that the terms of office of
Vice-Presidents, Ministers or Deputy Ministers terminated on their
ceasing to be Members of Parliament, thus emphasising the centrality
of an extant Parliament in the composition and functioning of the
Executive in a democratic dispensation.
Section
31E reads:
“31E
Tenure of office of Vice-Presidents, Ministers and Deputy Ministers
(1)
The office of a Vice-President, Minister or Deputy Minister shall
become vacant –
(a)
If the President removes him from office; or
(b)
If he resigns his office by notice in writing addressed and delivered
to the President; or
(c)
Upon the assumption of office of a new President.
[Subsection
amended by section 9 of Act No.15 of 1990 (Amendment No.10)]
(2)
No person shall hold office as Vice-President, Minister or Deputy
Minister for longer than three months unless he is a member of
Parliament:
Provided
that if during that period Parliament is dissolved, he may continue
to hold such office without being a member of Parliament until
Parliament first meets after the dissolution.
[Subsection
substituted by section 2 of Act No.31 of 1989 (Amendment No. 9)]"
In
the context of the GPA-based Government of National Unity (GNU), not
to be confused with the animal gnu with an ox-like head and a tufted
tail and ironically also an inhabitant of the Savannas of Africa,
whose existence is premised on political parties represented in
Parliament the question arises as to what the justification
constitutionally of its continued existence becomes once Parliament
is no more.
It
becomes a Government made up of political parties previously
represented in Parliament! And what would that say to other political
parties patiently waiting for their chances at the polls?
In
conclusion therefore, the proper construction of section 58(1) is
that election dates should be fixed and notified whether pursuant to
Presidential dissolution or automatic dissolution of Parliament in
such a way that elections are held within the life of Parliament or a
day/days immediately following its dissolution.
The
setting of these dates has to take into account the requirements of
the Constitution and the Electoral Act, which stipulate a period of
at least forty-four days between proclamation and actual holding of
elections.
In
terms of the provisions of the new Constitution, which came into
force on publication day, section 157(3), the minimum period is
forty-four days, thus:
"157(3)
The Electoral Law must provide for the nomination of candidates in
any election to take place at least fourteen days after the
publication of the proclamation calling for that election. Polling
must take place at least thirty days after the nomination of
candidates.”
(c)
Whether the applicant has made out a case for the Order sought
The
essence of the applicant's case is that the first respondent has
failed to fix and proclaim a date for Presidential, Parliamentary and
local government elections as required by section 58(1) of the
Constitution and failure by the first respondent to do so is
unconstitutional in general and in particular is in violation of the
applicant's rights as a voter and his legitimate expectation of
protection of the law as enshrined in subsections 18(1) and (1a) of
the Constitution.
As
can be deduced from what is concluded above, the first respondent is
already out of time in fixing and proclaiming dates for the
harmonised general elections to be held before the expiry of the life
of the current Parliament.
The
applicant's rights as already stated above have already been
infringed and continue to be violated with each passing day.
The
applicant is entitled to the declaration of such infringement and an
order correcting or rectifying as far as is possible such
infringement. See Commercial Farmers Union v Minister of Lands &
Ors 2000 (2) ZLR 469 at 486-487.
When
the first respondent failed to fix and proclaim a date for
Presidential, Parliamentary and local government elections, as
required by section 58(1) of the Constitution, to enable elections to
be held on the dissolution of Parliament on 29 June 2013, not only
did he violate the applicant's fundamental right as protected by
section 18 of the Constitution, he thereby derailed the electoral
process.
From
then onwards, the rule of law as regards the electoral process was no
longer extant.
It
is imperative that the rule of law be restored to the electoral
process and the applicant be afforded some relief.
The
first respondent has placed himself in a serious legal quandary or
predicament by his failure to issue the said proclamation timeously.
The
first respondent cannot remedy the situation by issuing the
proclamation for elections to be held by 29 June 2013, as doing so
will inevitably contravene the time lines set out in section 38 of
the Electoral Act.
Prospective
Parliamentary candidates are entitled, in terms of section 38 of the
Electoral Act, to fourteen days to organise their nominations and
thirty days to campaign before the date of the elections.
Thus,
affixing the date of the elections now in terms of section 58(1) of
the Constitution in anticipation of the dissolution of Parliament on
29 June 2013 will have the effect of violating the fundamental right
of aspiring Parliamentary candidates, entitling them to bring similar
applications to that of the applicant.
Apart
from this, the coming into operation of the new Constitution of
Zimbabwe has further complicated the situation.
The
new Constitution has introduced new time lines and necessitated
amendments to the Electoral Law, making the immediate issuance of a
proclamation fixing the date for harmonised elections on the
dissolution of Parliament on 29 June 2013 legally impossible.
The
Court, in my view, is compelled to take into account the exigencies
of this situation in the order that it makes.
Thus
compliance with the Court order must not of necessity compel the
first respondent to contravene another electoral provision.
The
applicant must have appreciated the first respondent's legal
predicament.
In
his draft order, the applicant asked for the immediate issuance of a
proclamation fixing the date of the harmonised elections upon the
dissolution of Parliament on 29 June 2013. In the alternative, the
applicant asked for the issuance of a proclamation forthwith setting
the date of the harmonised elections by no later than 25 July 2013.
I
have no doubt that the applicant's alternative relief is out of the
realisation and appreciation of the first respondent's legal
predicament.
I
am inclined to grant the alternative relief sought by the applicant
and add six days to 25 July 2013 to compensate for the period between
the hearing of this appeal and the handing down of this judgment.
The
first respondent, while not explicitly consenting to the alternative
relief, indicated that he had no objection to such relief.
The
main litigants in this matter, namely the applicant and the first
respondent, are accordingly in agreement over the alternative relief.
This relief also accords with the Court's desire to issue an order
that will help restore legality to the electoral process as quickly
as possible.
(d)
Costs
The
applicant has won his case and costs should follow the result. As
against the first respondent, the first respondent literally
consented to the alternative relief sought by the applicant.
Ordinarily a respondent who takes this attitude will not be ordered
to pay the costs. However, in this case it is the conduct of the
first respondent in failing to timeously fix a date for harmonised
elections that has compelled the applicant to approach the Court.
Apart
from this, the first respondent represents the State, and in my view
it is only fair and just that the State should pay the costs of a
public spirited citizen like the applicant, who undertook the
responsibility of doing something about an electoral process that has
gone astray.
The
second and fourth respondents opposed the application on the basis of
an interpretation of section 58(1) of the Constitution which this
Court has found to be permissible although erroneous. In my view, it
would be unjust to mulct the second and fourth respondents in costs.
The second and fourth respondents should simply bear their own costs.
It
is my hope that, although the order of the Court is not against the
second and fourth respondents, they will use their good offices to
assist the first respondent to restore the rule of law to the
electoral process.
(e)
Order
In
the result, the Court makes the following order:
1.
It is declared that the harmonised general elections in terms of
section 58(1) of the Constitution of Zimbabwe are due upon the
dissolution of Parliament on 29 June 2013. However, due to the first
respondent's failure to issue a proclamation fixing the date for the
harmonised elections timeously it is no longer legally possible to
hold the harmonised elections on that date.
2.
It is declared that the failure by the first respondent to fix and
proclaim date(s) for harmonised general elections to take place by 29
June 2013 is a violation of the first respondent's constitutional
duty towards the applicant to exercise his functions as a public
officer in accordance with the law and to observe and uphold the rule
of law in terms of section 18(1a) of the Constitution.
3.
It is further declared that by failing to act as stated in para 2
above, the first respondent has violated the applicant's rights as
a voter and his legitimate expectation of protection of the law
entrenched in section 18(1) of the Constitution.
4.
Accordingly, the first respondent be and is hereby ordered and
directed to proclaim as soon as possible a date(s) for the holding of
Presidential election, general election and elections for members of
governing bodies of local authorities in terms of section 58(1) of
the Constitution of Zimbabwe, which elections should take place by no
later than 31 July 2013.
5.
The first respondent shall bear the costs of the applicant.
ZIYAMBI
JA: I agree
GARWE
JA: I agree
GOWORA
JA: I agree
HLATSHWAYO
JA: I agree
CHIWESHE
AJA: I agree
GUVAVA
AJA: I agree
MALABA
DCJ:
PATEL
JA:
On the question of locus standi, I entirely concur that the applicant
has established the requisite standing to institute this application.
Pursuant
to section 18(1) of the former Constitution, which guarantees the
protection of the law and constitutional due process, he undoubtedly
has the right to have general elections held when they are due as
prescribed by the law.
By
the same token, section 18(1a) of that Constitution bestows upon him
a legitimate expectation that the President, the first respondent,
will exercise his functions as a public officer in fixing election
dates in accordance with the law.
The
fact that he has an alternative administrative law remedy by way of
mandamus does not, in my view, preclude his entitlement to approach
this Court for constitutional relief. In this regard, I respectfully
adopt the reasoning and conclusions of the learned CHIEF JUSTICE.
Turning
to the substantive merits of the matter, the principal issue for
determination is the meaning of and inter-relationship between
sections 58(1), 63(4) and 63(7) of the former Constitution.
On
this aspect, I fully endorse the principle of constitutionalism that
informs the approach taken by the learned CHIEF JUSTICE and the
majority of the Court. However, I am constrained, with the utmost
respect, to disagree with the construction that they place on the
provisions under review, in particular, on section 58(1).
The
tripartite structure of the State is the keystone of every
constitutional democracy and the need to safeguard the attendant
separation of powers is unquestionably paramount.
However,
as was recognised in Mike Campbell (Pvt) Ltd and Anor v Minister of
Lands and Anor 2008 (1) 17 (S) at 33-35, the clear words of a
Constitution must be construed to override any doctrine of
constitutionalism predicated on essential features or core values.
In
general, the principles governing the interpretation of a
Constitution are basically the same as those governing the
interpretation of statutes. One must look to the words actually used
and deduce what they mean within the context in which they appear.
See Hewlett v Minister of Finance 1981 ZLR 571 (S) at 580.
If
the words used are precise and unambiguous, then no more is necessary
than to expound them in their natural and ordinary sense. See The
Sussex Peerage (1843-1845) 65 RR 11 at 55.
In
essence, it is necessary to have regard to the words used and not to
depart from their literal and grammatical meaning unless this leads
to such an absurdity that the Legislature could not have contemplated
it. See, in this regard, the case authorities cited by the learned
CHIEF JUSTICE.
Section
58(1) of the Constitution, as amended by Act No.11 of 2007 to
accommodate harmonised elections, prescribes when general elections
are to be held and the fixing of election dates, as follows:
“A
general election and elections for members of the governing bodies of
local authorities shall be held on such day or days within a period
not exceeding four months after the issue of a proclamation
dissolving Parliament under section 63(7) or, as the case may be, the
dissolution of Parliament under section 63(4) as the President may,
by proclamation in the Gazette, fix.”
The
prorogation and dissolution of Parliament are dealt with in section
63 of the Constitution. For present purposes, subsections (4) and (7)
are the pertinent provisions and they provide as follows:
“(4)
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 subsection is extended
under subsection (5) or (6), Parliament, unless sooner dissolved,
shall stand dissolved on the expiration of that extended period.
(7)
Subject to the provisions of subsection (4), any prorogation or
dissolution of Parliament shall be by proclamation in the Gazette
and, in the case of a dissolution, shall take effect from the day
preceding the day or first day, as the case may be, fixed by
proclamation in accordance with section 58(1) for the holding of a
general election.”
The
first point to note is that both section 58(1) and subsections 63(4)
and (7) have remained unaltered in substance since they were first
enacted in 1980.
The
second more critical point is that they deal with two distinct though
related constitutional processes, viz. the fixing of elections on the
one hand and the life of Parliament on the other.
These
two processes and their objectives have been unnecessarily conflated
by the applicant in casu.
The
approach adopted by the learned CHIEF JUSTICE in relation to section
58(1) is to read it so that the two separate scenarios for the
dissolution of Parliament are taken to follow after the words “shall
be held on” rather than the phrase “within a period not exceeding
four months after”.
In
my respectful view, dividing section 58(1) in this fashion detracts
from its grammatical structure and leads to an inchoate rendition of
the provision.
In
particular, in the situation where Parliament is dissolved by
operation of law under section 63(4), the literal result is that
elections are to be held “on the dissolution of Parliament”.
Does
this mean that elections are to be held simultaneously with the
dissolution of Parliament, or immediately thereafter, or at some
later stage?
More
importantly, this reading has the peculiar effect that no actual
“election day or days” are fixed, contrary to the very purpose of
section 58(1).
Such
a construction surely cannot reflect what the Legislature would have
intended.
A
plain reading of section 58(1) makes it clear that elections must be
held after the dissolution of Parliament on such day or days as the
President may fix by proclamation.
This
applies to both scenarios for the dissolution of Parliament.
Where
it is dissolved by the President under section 63(7), elections must
take place within four months after the issue of a proclamation
dissolving Parliament. Where Parliament stands dissolved by operation
of law in terms of section 63(4), elections must be held within four
months after the dissolution of Parliament.
In
my considered view, the wording used is unambiguous and does not
admit of any other interpretation, nor does it entail any absurdity.
Consequently, there is no need to invoke any teleological or
purposive approach in the construction of section 58(1).
The
apparent ambiguity that might emerge arises from the wording of
section 63(7) and its juxtaposition of the dissolution of Parliament
with the first election day fixed under section 58(1).
Read
in their context, however, there is no real ambiguity as between
sections 58(1) and 63(7).
What
the latter provision means is this:
Any
prorogation or dissolution of Parliament by the President must be
effected by proclamation in the Gazette. In the case of a
dissolution, this must take effect from the day preceding the day or
days fixed by proclamation under section 58(1) for the holding of a
general election. This would apply, in particular, where the
President dissolves Parliament in terms of section 63(2) well before
the expiration of its five year tenure.
However,
this is subject to section 63(4), so that the automatic dissolution
of Parliament by operation of law may but need not take effect on the
day preceding the day fixed for the holding of elections.
In
other words, the prescribed tenure of Parliament cannot be extended
beyond five years in the event that the date fixed for elections
falls outside that period. In that case, the dissolution of
Parliament cannot immediately precede the election date fixed under
section 58(1).
Reading
all of the relevant provisions together, the relationship between the
holding of elections and the life of Parliament is resolved as
follows:
Where
Parliament is dissolved by the President acting under section 63(2),
elections must be held within four months after the issue of the
proclamation dissolving it in terms of section 63(7).
In
this case, the two events must be synchronised so that the
dissolution of Parliament takes effect on the day preceding the day
or days fixed for elections in terms of section 58(1).
Conversely,
where Parliament is dissolved by operation of law after the effluxion
of five years in terms of section 63(4), elections must be held
within a period not exceeding four months after the dissolution of
Parliament.
In
this case, elections need not be held immediately after such
dissolution, so long as they are held on a day or days within the
four month period after dissolution.
In
short, different time frames apply to the two forms of dissolution.
Does
this differentiation necessarily entail an absurdity? I am inclined
to think not.
Where
the President takes a deliberate decision, for whatever reason of
political or practical expediency, to dissolve Parliament before the
expiry of its prescribed five year tenure, that decision involves the
exercise of an extraordinary executive power. And in that
extraordinary eventuality, Parliament has deemed it fit to ensure
that there should not be any delay between its dissolution and the
holding of general elections.
However,
the need for such urgency or immediacy does not arise where
Parliament continues in existence and operation throughout its
ordinary term of five years.
Of
course, it is a matter of concern that the plain reading of section
58(1) invites the “spectre” of rule by Executive decree for a
maximum period of four months without the restraint of Parliamentary
oversight.
While
the possibility of this hiatus may be undesirable from a democratic
perspective, it is not necessarily absurd or unconstitutional.
That
scenario, unpalatable as it may be, is explicitly contemplated in
section 31E of the Constitution dealing with the tenure of office of
members of the Executive.
More
specifically, section 31E(2) provides that:
“No
person shall hold office as Vice-President, Minister or Deputy
Minister for longer than three months unless he is a member of
Parliament:
Provided
that if during that period Parliament is dissolved, he may continue
to hold such office without being a member of Parliament until
Parliament first meets after the dissolution.”
This
provision was substituted by Parliament through Act No.31 of 1989, in
tandem with the advent of the executive presidency.
It
constitutes a clear recognition and acceptance by Parliament itself
of the possibility of its abeyance for the duration of at least three
months. In effect, it unequivocally fortifies the plain and
unqualified construction of section 58(1) vis-a-vis the provisions of
subsections 63(4) and (7).
For
all of the aforestated reasons, I would dismiss the present
application on its merits.
Mandizha
& Company, applicant's legal practitioners
Terrence
Hussein, Ranchod & Company, first respondent's legal
practitioners
Atherstone
& Cook, second respondent's legal practitioners
Web,
Low & Barry, fourth respondent's legal practitioners
Civil
Division of the Attorney General's Office, fifth respondent's
legal practitioners
