Court Poll decision is legal sophistry

In arriving at judgements, it is important that courts do not cultivate the unsavoury impression that they are hell-bent on taking us back to the Court of Chancery in Dickens’ Bleak House. The Court of Chancery was entrusted with the responsibility of making fair and reasonable judgements but it was not fulfilling its function. The word chancery itself is a term in the art of boxing. If you are in-chancery it means your head is held in someone’s hand and he punches you. If one gets into Chancery Court, one is thumped, one is hammered. That was the feeling I got after reading the decision of Zimbabwe’s Constitutional Court ordering President Robert Mugabe to hold elections by 31 July, 2013.

The majority decision is an exercise in legal sophistry. It is much easier for a camel to pass through the eye of a needle than for this decision to make sense. The decision is not only poorly argued but represents a clear and present danger to the holding of credible elections in the country.

At the heart of the contestation is how parliament ought to be dissolved and how soon elections take place after this dissolution. According to the constitution there are two ways by which Parliament can be dissolved. It is either through a presidential proclamation or at any rate an automatic dissolution after the parliament’s five-year term comes to an end on 29 June, 2013. Either way it is clear that elections must be held four months after parliament is dissolved.

Section 58 (1) of the constitution which is cited as the basis of the majority decision penned by Chief Justice Chidyausiku is clear and unambiguous on when elections must held. It states that:

“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 (4) as the president may, by proclamation in the gazette, fix.”

The majority decision advances the position that there are two ways of reading this section depending on what the chief justice calls “punctuation and emphasis”. In Reading A, section 58 (1) would be read as if there was a colon after the word “on” : 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…”

As constitutional expert Derek Matyszak has clearly articulated, the introduction of the colon dramatically changes the section to mean that the election has to be held “on” the dissolution of parliament and not “within a period not exceeding four months”.

Says Matyszak: Inserting the colon in Section 58 (1) after the word “on” has the effect of removing the application of the phrase “within” a period not exceeding four months after” from the portion of the section referring to automatic dissolution under 63(4). With a proper and grammatical reading of the sentence, the phrase must apply to dissolution by proclamation and to automatic dissolution”.

Elsewhere in the judgement the Chief justice makes the fair comment that in interpreting the Law, the courts must follow an interpretation that does not lead to an absurdity. The mind boggles why the Chief Justice decides to introduce a colon in a sentence that does not have one and thus unwittingly leads the court to an absurdity.

In giving the president two months to hold the elections, the decision cites the holding of the March 2008 harmonised elections as an example. Digging up Statutory Instrument 7 A of 2008, the chief justice gives the example of this proclamation which was issued on 24 January 2008 and dissolved Parliament with effect from midnight leading to elections in slightly over two months. One imagines that the reason why this example is given is to buttress the point that it is possible to organise elections within two months. This understanding is misleading to say the least because the context is remarkably different to the one in 2008.

For starters, Zimbabwe is following two constitutions in the sense that although Chapter 7 of the new Constitution is the supreme law regarding elections it has to be guided by the Lancaster House constitution on the timing of elections. More importantly, the two constitutions must be read together with the Sixth Schedule of the new Constitution which outlines provisions meant to assist the transition from the old Constitution to the new Constitution. The amount of legal work that needs to be done before elections can take place is massively different from what was required for the March 2008 elections. According to Section 8 of the Sixth Schedule elections must be conducted in terms of the Electoral Law of which law must comply with the new Constitution. Put simple, the Electoral Act as well as other laws and regulations related to elections must be amended so that they are in compliance with the new Constitution.

Having read the full judgement of the constitutional court, there is no reason, however magnificently maintained that persuades me that the honourable justices who proffered the majority opinion sufficiently engaged with the new constitution and understood the various legislative provisions which make the July 31 deadline an impossibility. It is still not clear how the proportional system of representation mandated by the constitution will operate. There is need to amend the Local Government Act and the Provincial Councils Act. Reforms also beckon on criminal procedure and the justice delivery system as well as clarity on the operations of the Electoral Court itself. Making all these reforms is not a walk in the park and elections cannot proceed without these reforms. What is more the various amendments must sail through both Houses of Parliament and be signed into law by the President before he can announce an election date. Indeed according to section 157(5) of the new Constitution all amendments to the Electoral Law and to any other provisions relating to elections must be made before the proclamation of the election date.

There are also other processes that need to be considered that have implications on the absurd July 31 deadline. Section 6(3) of the Sixth Schedule makes it mandatory for a 30-day intensive voter registration exercise to kick in after the publication of the new constitution. The beginning of this process depends on the Zimbabwe Electoral Commission (ZEC) being properly financed and resourced. ZEC Commission chairperson Justice Rita Makarau says voter registration will begin Monday, 9 June and will run concurrently with the inspection of the voters’ roll. If we take the bare minimum scenario then voters’ roll inspection would close on Monday 8 July. The nomination court would sit 14 days later (that takes us to 22 July), and after 30 days (takes us to 21 August) of the sitting of the Nomination Court, elections can take place. If we master the suspension of disbelief necessary for a feigned belief in our ability to fast-track things it would still be impossible to meet the July 31 deadline. The only fast-tracking that can be done is if we assume that all amendments have been done and are operational. This would mean that an election date is announced during voter registration but even then it can only be announced 15 days before the conclusion of the voter registration exercise. This would mean the earliest elections can be held is 6 August.

For the avoidance of doubt, it is not desirable that the President and the executive can continue up to four months while parliament is absent, but it certainly is not unconstitutional. It seems to me that the proper balance would have been to extend the life of parliament for at most six months so that it can align the various laws and regulations with the new constitution. Those with short memories are peddling the fiction that President Mugabe is a true democrat because he does not want the country to function without a parliament for four months; nothing can be further from the truth. Lest we forget, in 2008, parliament was dissolved in January and only convened in August of that year and Mugabe was happy to run the show on his own. And no one should argue that Mugabe is a stickler for court orders because he is on record aiding and abetting the disobedience of court orders that are not palatable to him and Zanu PF.

In Dickens’ Bleak House, fog is an important symbol, and it is that condition in which things are mystified and people cannot see one another. The Court of Chancery is the source of this fog; it has a disastrous occupation with forms at the expense of solutions. It is the master of the bleak world and its attitude is that of polite smug and pretence. While it is too early to suggest that Zimbabwe’s Constitutional Court has gone the Court of Chancery way, its judgement does not inspire confidence. The judgement is full of palpable absurdities and is to put it mildly, preposterous. The only way that the July 31 deadline can be met is through violating the constitution.

*Percy F. Makombe is a development practitioner based in South Africa