CHIDYAUSIKU CJ: This is an application brought under s 24(1)
of the Constitution of Zimbabwe (hereinafter “the Constitution”) on the basis
that the applicant's rights enshrined in ss 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 s 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.
Whether the applicant has locus standi to approach the
Supreme Court in terms of s 24 (1) of the Constitution
The applicant avers in his founding affidavit that his
application is premised on s 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 s 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 s 18(1a) of
the Constitution which, together with s 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, s 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 s 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 thepre-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 s 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 s 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 s 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 …”
(p 25G–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 ….” (p
276E-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,
more so 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 ss 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 s 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 s
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, s 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 s 63 referred to in this provision, emphasising
the key subss 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 ccordingly every Bill, motion,
petition or other business shall lapse." (emphasis added)
Although on the face of it ss 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 interrelatedness of
these matters creates a maze of back and forth crossreferencing between s 58(1)
and ss 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 ss 58(1)
and 63(7).
b) Section 63(7) is subjected to the provisions in s 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 s 64(4) which might have
necessitated the subjection of s 63(7) to it, viz. that dissolution of
Parliament following expiry of its extended period is automatic, whereas s
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 s 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 s 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 s 58(1).
The second scenario of interpreting s 58(1) also implies
that the President must wait until the life of Parliament would have expired in
terms of s 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 s 58(1).
In Venter v Rex 1906 TS 910 at pp 914-915 INNES C.J.
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 s 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 subss 63 (5) and (6).
The principle of constitutionalism which we referred to
earlier, is embodied in s 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
1 9 CCZ 1/13
Mike Campbell (Pvt) Ltd and Another v Minister of Lands and
Another 2008 (1) ZLR 17(S).
If s 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 s 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 s 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 s
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 s 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, s 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 s 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 subss 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
s 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 s 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 s 38 of the Electoral Act.
Prospective Parliamentary candidates are entitled, in terms
of s 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 s 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 s 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 s 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 s
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 s
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 s 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 s 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, s 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 interrelationship
between ss 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 s 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 s 63 of the Constitution. For present purposes, subss (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 s 58(1) and subss 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 s 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 s 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 s 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 s 58(1). Such a construction surely cannot reflect what the Legislature
would have intended. A plain reading of s 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 s 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 s
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 s 58(1).
The apparent ambiguity that might emerge arises from the
wording of s 63(7) and its juxtaposition of the dissolution of Parliament with
the first election day fixed under s 58(1). Read in their context, however,
there is no real ambiguity as between ss 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 s 58(1) for the holding of a general election. This would
apply, in particular, where the President dissolves Parliament in terms of s
63(2) well before the expiration of its five year tenure. However, this is
subject to s 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 s 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 s 63(2), elections must be held within four months after the issue of the
proclamation dissolving it in terms of s 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 s 58(1).
Conversely, where Parliament is dissolved by operation of law after the
effluxion of five years in terms of s 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 s 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 s 31E of the
Constitution dealing with the tenure of office of members of the
Executive.
More specifically, s 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 s
58(1) vis-à-vis the provisions of subss 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
