Tuesday, June 25, 2013

(HERALD ZW) Tsvangirai distorting discourse
Monday, 17 June 2013 01:15
Hon Patrick A. Chinamasa, MP

MY attention as Minister of Justice and Legal Affairs in the Government of the Republic of Zimbabwe has been drawn to a statement released to the media on June 13, 2013 by the Hon Prime Minister Morgan Tsvangirai.

The Statement politically challenges the legal steps taken by his Excellency the President Mugabe, to comply with the May 31, 2013 decision by the Constitutional Court ordering His Excellency the President to ensure that Zimbabwe’s next harmonised elections which the court found were constitutionally due on June 29, 2013 are held by July 31, 2013 to restore the rule of law as regards the electoral process.

In his political statement Prime Minister Tsvangirai specifically complained about two notices that were made in the Government Gazzette, namely:

(1) Presidential Powers (Temporary Measures) (Amendment of Electoral Act) Regulations, 2013 issued on Wednesday June 12, 2013 by his Excellency the President Mugabe, as Statutory Instrument 85 of 2013 to align the Electoral Law with the new Constitution and

(2) A proclamation issued by his Excellency President Mugabe, as Statutory Instrument 86 of 2013 fixing Thursday, June 28, 2013 as the day of the sitting of the Nomination Court and Wednesday, July 31, 2013 as the day of the election to the office of President, the election of members of the national assembly and the election of councillors.

While the five-page statement by the Prime Minister is manifestly inflammatory as not to warrant any response, it also contains some gross misrepresentations of the constitutional or legal position which must be corrected in view of the fact that they are coming from the office of the Prime Minister in the inclusive Government.

Firstly, the Prime Minister alleges that the two respective notices gazetted by his Excellency “purported to be in “compliance with the Constitutional Court judgment”. This is cheap politicking as there is nothing in the two notices gazetted by the President which “purports” to do anything. The judgment of the Constitutional Court is very clear and unambiguous about what should be done, which authority should do it and the reasons thereof.

For the avoidance of doubt the order of the Court was as follows:

1. It is declared that the harmonised general elections in terms of S58(i) of the Constitution of Zimbabwe are due upon the dissolution of Parliament on June 29. However, due to the first respondent’s failure to issue a proclamation fixing the date for the forthcoming 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 the harmonised general elections to take place by June 29, 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 S18 (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 July 31, 2013.

The actions taken by His Excellency the President specifically and clearly complied with the Court’s order to restore the rule of law in Zimbabwe as regards the electoral process. Prime Minister Tsvangirai’s suggestion and indeed demand that His Excellency the President Mugabe, should not comply with the order of the Constitutional Court is unlawful, dangerous and wholly unacceptable because it is a direct attack on the rule of law.

Secondly, the Prime Minister alleges that “in terms of the GPA . . . which has been codified as the 8th Schedule of the current Constitution of Zimbabwe, the President can only act in consultation with the Prime Minister in respect to any executive decisions including the announcement of the date of the election” and further claims that “President Mugabe’s actions are unilateral and flagrant breach of our Constitution and the GPA”.

There is no provision in the GPA or the 8th schedule of the Constitution which requires that “the President can only act in consultation with the PM in respect to any executive decisions including the announcement of the date of the election”.

Both the GPA and the 8th schedule of the Constitution are very specific about which power or authority the President should exercise either “in consultation with” or “after consulting” the PM. It would be plainly preposterous to have an agreement or a Constitution which requires an elected Executive President to “only act in consultation with the PM in respect to any executive decisions”. That arrangement, which would make the PM a co-president, has no precedence anywhere in constitutional democracies around the world.

The only relevant but not applicable provision in the GPA which is also in the 8th schedule of the Constitution is paragraph 20.1.3(q) which provides that “The President may, acting in consultation with the PM dissolve Parliament”. Quite clear this provision only and specifically relates to the dissolution of Parliament and not to the announcement or fixing of the date of the election”.

The Constitution gives that power to the President to exercise alone. In the same vein, it is a matter of the public record that the President has not dissolved Parliament as that is going to happen on June 29, 2013 by operation of law when the five year term of Parliament automatically expires.

The PM is, therefore, wrong to claim that he has any role to play in fixing or announcing the date for general elections in a situation where Parliament is dissolved by operation of law as will happen on June 29 2013.

Thirdly, PM Tsvangirai claims in his statement that the “part III of the 6th schedule our Constitution makes it clear that there shall be an intense 30-day voter registration exercise. Only on Tuesday in Cabinet all parties agreed that it had commenced on June 10, 2013 and would be completed on July 9, 2013.

The net effect of the proclamation is therefore to infringe on the constitutional provisions obliging the 30-day intensive voter registration exercise. It will also mean that President Mugabe is disenfranchising many people who were registering to vote, for instance aliens and first time voters. President Mugabe is also denying political parties and Zimbabweans the opportunity to inspect the voters roll”.

The Prime Minister further alleges that: “In any event, Section 26 A of our Electoral Act Cap 2:13 makes it clear that voter registration for everyone closes 24 hours before the sitting of the Nomination Court. This means that voter registration will now close on the 27th of June instead of the 9th of July. “A clear, flagrant and fraudulent breach of our Constitution” (Emphasis in the original).

It is significant that the Prime Minister says that “all parties (not the law) agreed that it (intense voter registration exercise) commenced on 10 June 2013 and would be completed on 9 July 2013”. But the issue is not about agreement between political parties, but about what the Constitution says. Paragraph 6(3) of the sixth schedule to the new Constitution provides that, “The Registrar General of voters, under the supervision of the Zimbabwe Electoral Commission, must conduct a special and intensive voter registration and a voters’ roll inspection exercise for at least thirty days after the publication day”.

Therefore, it is very clear that constitutionally, the special and intensive voter registration and a voters roll inspection started on May 23, 2013 after the new Constitution was published on May 22, 2013. There can be no doubt about this legal position. The question is whether the exercise was actually commenced on that day is only a logistical matter and not a constitutional or legal matter.

While Prime Minister Tsvangirai relies on Section 26 A of the Electoral Act (Cap2:13) to claim that “the net effect of the proclamation is therefore to infringe on the Constitutional provisions obliging the 30-day intense voter registration exercise,” the legal position is that this (Temporary Measures) (Amendment of Electoral Act) Regulations, 2013 to allow for the special and intensive voter registration and a voters’ roll inspection exercise which the “all parties (in Cabinet) agreed that it commenced on June 10, 2013 and would be completed on July 9, 2013” to effectively end on July 9, 2013.

Therefore, it is not legally correct that there has been an infringement of any constitutional provision regarding voters’ registration nor is it legally correct that any first time voters, such as the so called aliens, have been disenfranchised.

Fourthly, Prime Minister Tsvangirai assertion that “the earliest the election could be held is the 25th August 2013” is thumb suck date with no constitutional or legal basis and is deliberately subversive against the judgment of the Constitutional Court which ordered elections to be held by 31st July, 2013. As such, Prime Minister’s charge that “President Mugabe has acted unlawfully and unconstitutionally and is deliberately precipitating an unnecessary Constitutional crisis” is not only false but is also inflammatory and irresponsible.

It is in fact the Prime Minister who has become hell bent on creating a false crisis by seeking to defeat the judgment of the Constitutional Court and to thus undermine the rule of law as regards the electoral process.

Fifthly, Prime Minister Tsvangirai’s reference to reforms allegedly still outstanding from a “roadmap” based on all documents handed over to President Zuma in June 2012” is nothing but a political smokescreen intended to creating confusion where serious progress has been made on the reform front through the adoption of the new Constitution.

This is particularly so in view of the Constitutional Court judgment which President Mugabe has complied with as his only option in the interest of the rule of law in view of the fact that the term of office of the President, of the Prime Minister and other Ministers in the inclusive Government, of members of Parliament and of members of governing bodies of local authorities all expire on June 29, 2013.

A cursory review of the roadmap referred to by Prime Minister Tsvangirai shows that it has some issues that were agreed to and implemented and many other issues that were agreed to. Media and so-called security sector reforms that were agreed are provided for in the new Constitution and there can be no greater reform than that. The necessary amendments to align the Electoral Act with the new Constitution were negotiated, agreed to and approved by the Cabinet before their promulgation on 12 June, 2013 as Presidential Powers (Temporary Measures)(Amendment of Electoral Act) Regulations, 2013.

Prime Minister Tsvangirai is legally wrong to use inflammatory propaganda to claim that the Presidential Powers (Temporary Measures) Act is not in compliance with the new Constitution. In particular the Prime Minister alleges that, “For the avoidance of doubt, section 134A of the new Constitution makes it clear that only Parliament has the power to make primary legislation and that its powers of making law cannot be delegated to anyone, including the President”. The constitutional position is that section 134A of the new Constitution, which the Prime Minister is in fact wrongly interpreting, is not yet operational.

In terms of paragraph 3(1) (d) of the Sixth Schedule to the publication day on the 22nd May, 2013 relates “to the election of general election and to the assent to Acts of Parliament by the President”. It is very difficult to understand why the prime Minister would rely on a provision of the new Constitution which is not yet operational to make inflammatory attack on His Excellency the President, R.G. Mugabe.

President Mugabe had to take the route of the Presidential Powers (Temporary Measure)(Amendment of Electoral Act) Regulations, 2013 because the Parliamentary route was no longer available for him to comply with the judgment of the Constitutional Court in order to restore the rule of law as regards the electoral process.

Besides, it is common cause that the Prime Minister’s MDC-T party had resolved to abuse the parliamentary process to delay the passage of the electoral amendments in order to force the President not to comply with the order of the Constitutional court. A case in point is a widely reported on Facebook posting by a senior MDC-T a Minister of State in Prime Minister’s office, Jameson Timba, which threatened that:

“Zanu-PF has to agree to an electoral roadmap (outside the judgment of the Constitutional court) otherwise the MDC-T will use its parliamentary numbers to force Mugabe into a climb-down (from complying with the order of the court)”.

Sixthly, Prime Minister alleges that “President Mugabe and his team cannot hide behind the concept of sovereignty that they long ago surrendered and mortgaged….that led SADC to engage in our affairs as way back as 2007”. It is very clear and quite disturbing that the Prime Minister is seeking to provoke a false crisis to stampede His Excellency the President Cde Mugabe not to comply with the judgment of the Constitutional court under the false pretext that Zimbabwe surrendered its sovereignty to SADC in 2007. This is an unacceptable insult not only to Zimbabweans but also to SADC.

Seventhly, and finally, Prime Minister concluded his statement by refreshingly indicating that he had instructed his “attorneys to file an urgent court application” apparently to challenge the proclamation by His Excellency the President fixing 31st July, 2013 as the date for the harmonized general election.

The Prime Minister’s conclusion is refreshing because it suggests that he after all recognizes that false and inflammatory political statements political statements made to the gallery of the media cannot replace the rule of law which requires that the constitutionality or unconstitutionality of executive actions can only be determined by the courts and not be declared by rival members of the executive without self-evident political interests.

In this connection, the Prime Minister should not expect to bake his cake and eat it at the same nor should he expect to go forum shopping. In a constitutional democracy, and in terms of the rule of law, the only legal and constitutional route available to Prime Minister to invalidate the proclamation of the election date by His Excellency the President is the court process. In same vein, if Prime Minister wants to have the Presidential powers (Temporary measures) (Amendment of Electoral Act) Regulations, 2013, his only recourse are the courts.

* Hon Patrick A. Chinamasa, MP is Minister of Justice and Legal Affairs




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