Monday, June 03, 2013

(NEWZIMBABE) Ill-informed statement exposes Tsvangirai
02/06/2013 00:00:00
by Jonathan Moyo

LAST Friday’s landmark decision by the new-look, nine-member Constitutional Court ordering President Mugabe to issue a proclamation as soon as possible fixing the date of the next harmonised elections to be held by July 31 has exposed political charlatans, media, NGO and diplomatic ignoramuses whose misguided but determined efforts to plunge Zimbabwe into a constitutional crisis have come to grief under the weight of the rule of law.

The vain hope of these charlatans and ignoramuses led by Morgan Tsvangirai was to stampede Sadc on June 9 into enabling the barons of regime-change to derail the impending electoral defeat of the MDC formations by precipitating fresh negotiations for a non-elected and thus undemocratic GPA government without a Parliament under the cover of what would have been an unprecedented period of unconstitutionality, disorder and chaos following the expiry on June 29 of the terms of office for President Mugabe, Parliament and local authorities.

Against this backdrop, and in view of the fact that critical sections of the new Constitution - including one setting up a new Constitutional Court with wide ranging jurisdiction - came into effect on its publication day on May 22, it is a matter of national pride that the rule of law is alive and well in Zimbabwe. In particular, it is most welcome that the new Constitutional Court has started on a historic note by stamping its undisputed authority as the only competent arm of the State with the constitutional power to interpret the law and to make any necessary orders to ensure the observance thereof.

Sadly, the fact that it is the duty and responsibility of the Constitutional Court to interpret the law has been lost to Morgan Tsvangirai whose days as Prime Minister are now seriously numbered as he begins to understand the meaning of the prophetic words of his autobiography that he is indeed “At the Deep End” facing drowning at the polls to be held by July 31. In yet more proof of his trademark that when he is not indulging in his open zip shenanigans, he is wont to be opening his mouth with a shut mind, Tsvangirai rushed into issuing a pathetic Press statement after the decision of the Constitutional Court last Friday with preposterous claims that “. . .today’s ruling by the Supreme Court (sic.) setting an election date is evidence that the court has overstepped its mandate”.

As if this was not bad enough, Tsvangirai also claimed that “. . .but section 63(4) [of the Constitution] is clear that the executive can continue for a maximum of 4 months, which means an election has to be held by 30 October 2013”. Besides the fact that section 63(4) does not saying anything of the sort, it is ridiculous for Tsvangirai to say or believe that the Constitution interprets itself or that his interpretation of the law is superior to that of the Constitutional Court. Tsvangirai’s statement was as thoughtless as it was unfortunate and it has given powerful evidence that he is not leadership material in a constitutional democracy based on the rule of law.

As such, Tsvangirai’s ill-informed Press statement has three pervasive fallacies which must be unpacked to expose them for the lies that they are. It is a lie that the judgment which is the subject of Tsvangirai’s Press statement came from the Supreme Court. It is also a lie that the judgement set an election date as claimed by Tsvangirai.

Still further it is yet another lie that the Constitutional Court does not have a mandate to order and direct President Mugabe 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 by July 31 in terms of s 58(1) of the Constitution of Zimbabwe. It is now clear beyond rational disputation that Tsvangirai and lies have become inseparable such that whatever Tsvangirai says cannot be trusted without verification.

Tsvangirai’s Friday claim that “. . .the ruling by the Supreme Court (sic.) setting an election date is evidence that the court has overstepped its mandate” is flawed on three grounds which expose his lies.

In the first place, by ignorantly referring to the Constitutional Court as the “Supreme Court”, Tsvangirai displayed the fact that he clearly did not know what he was talking about with regard to the new constitutional dispensation which took root on May 22 under the new Constitution.

If Tsvangirai had shut his mouth and opened his mind and checked the provisions of sections 166, 167, 168 and 169 of the new Constitution before issuing his rushed and thoughtless Press statement last Friday, he would have realised that Friday’s decision on the election date was made by the Constitutional Court and not by the Supreme Court. Since May 22 Zimbabwe has a new court system and it is a pity that Alex Magaisa continues to sleep on his job and is yet to “gaisa” this development around the courts for Tsvangirai’s consumption.

In the second place, Tsvangirai’s claim that the Constitutional Court (which he mislabelled as the Supreme Court) set an election date in judgement issued last Friday is total fiction unbefitting of the position and office he holds as Prime Minister. It is shameful and totally unacceptable for a whole Prime Minister to peddle lies about a very transparent and public fact that can be easily verified. The simple fact is that the Constitutional Court did not set an election date as falsely alleged by Tsvangirai. For the avoidance of doubt about what the Constitutional Court actually ordered in its historic decision, there are four key paragraphs in its thirty-something page judgment which

Tsvangirai must know and they are these: (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 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 gold 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 s 18(1a) of the Constitution.

(3) It is further declared that by failing to act as stated 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.

It is therefore plain from the fourth order of the Constitutional Court as reproduced above that nowhere in its judgement did the Court set an election date as outrageously claimed by Tsvangirai in his rushed Press statement issued immediately after the decision of the Court last Friday.

What is very clear is that the Constitutional Court “ordered and directed President Mugabe 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” and that for legality and constitutionalism to be restored, these elections which in terms of the law should have been held on June 29 “should take place by July 31 2013”.

This means that the election date has not been fixed as it can only be fixed by President Mugabe in terms of section 58(1) of the Constitution. The Constitutional Court recognised this legal position, namely that it is not its business or responsibility to set an election date, and ordered President Mugabe to fix the election date(s) through a proclamation which he must issue as soon as possible and to ensure that the election date(s) he fixes are by July 31 2013. While Zimbabweans now know that the harmonised general elections should be held by July 31, they still do not know when the elections are within the timeline ordered by the Constitutional Court as that will be determined by President Mugabe through a proclamation which he is yet to issue.

In the third place, by claiming that the election judgement issued by the Constitutional Court last Friday overstepped the mandate of the Court puts paid to his fake grandstanding as a so-called champion of the rule of law. Whether the Constitutional Court overstepped its mandate is not something to be determined by someone who approaches national issues with an open mouth and a shut mind. It can only be found in the new Constitution upon which the jurisdiction of the new Constitutional Court is founded.

The jurisdiction of the nine-member Constitutional Court which determined the historic election matter last Friday is provided in section 167 of the new Constitution as follows: (1) The Constitutional Court – (a) is the highest court in all constitutional matters, and its decisions on those matters bind all other courts;

(b) decides only constitutional matters, and issues connected with decisions on constitutional matters, in particular references and applications under section 131(8)(b) and paragraph 9(2) of the Fifth Schedule; and

(c) makes the final decision whether a matter is a constitutional matter or whether an issue is connected with a decision on a constitutional matter.

(2) Subject to this Constitution, only the Constitutional Court may - (a) advise on the constitutionality of any proposed legislation, but may do so only where the legislation concerned has been referred to it in terms of this Constitution;
(b) hear and determine disputes relating to election to the office of President;
(c) hear and determine disputes relating to whether or not any person is qualified to hold the office of Vice President; or
(d) determine whether Parliament or the President has failed to fulfil a constitutional obligation.

(3) The Constitutional Court makes the final decision whether an Act of Parliament or conduct of the President or Parliament is constitutional, and must confirm any order of invalidity made by another court before that order has any force.

(4) An Act of Parliament may provide for the exercise of jurisdiction by the Constitutional Court and for that purpose may confer the power to make rules of court.

(5) Rules of the Constitutional Court must allow a person, when it is in the interests of justice and with or without leave of the Constitutional Court - (a) to bring a constitutional matter directly to the Constitutional Court; (b) to appeal directly to the Constitutional Court from any other court; (c) to appear as a friend of the court.

The jurisdiction of Zimbabwe’s new Constitutional Court has been reproduced here in full to enlighten Tsvangirai about the full powers and authority of the Court. It is clear from these powers and authority that the Court did not overstep its mandate as falsely alleged by Tsvangirai.

Subsection 1(c) of 167 provides that the Constitutional Court “makes the final decision whether a matter is a constitutional matter or whether an issue is connected with a decision on a constitutional matter”; while subsection 2(d) gives the Court the power to “determine whether Parliament or the President has failed to fulfil a constitutional obligation”.

In the circumstances, only a political charlatan or hopeless ignoramus can claim that the Constitutional Court overstepped its mandate. The bottom line is that, in terms of the doctrine of the separation of powers which Tsvangirai referred to in his Friday Press statement without showing that he understands it, only the courts can interpret the law.

The challenge or case before the Constitutional court was to interpret section 85(1) of the Constitution which provides 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(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 Constitutional Court interpreted section 58(1) of the Constitution of Zimbabwe to mean that the harmonised general elections are due upon the dissolution of Parliament on 29 June and that, because President Mugabe has not issued a proclamation fixing the date for the forthcoming elections timeously, it is no longer legally possible to hold the harmonised elections on that date. Accordingly, the Court ruled that President Mugabe should issue the required proclamation as soon as possible fixing a date for the harmonised elections which must be held by July 31 2013 in order to restore the constitutional position which currently stands violated.

In view of these facts, Tsvangirai’s conduct in response to the decision of the Constitutional Court has shown beyond doubt that he is a danger to the rule of law and is thus not fit to govern. Over the last four years, Tsvangirai has always put politics above the law and behaved as if, as an outcome of the 2008 harmonised elections, the GPA must now become a permanent foundation government to rule Zimbabwe by negotiations until chickens grow horns under President Zuma’s Sadc facilitation team some of whose loquacious yet clueless members like Lindiwe Zulu have shown a dangerous contempt of Zimbabwe’s Constitution.

It is heartening to note that Sadc is on record that the regional body will respect the decision of the Constitutional Court. What now remains to be seen is the promised respect because the Constitutional Court has spoken. Elections must be held by July 31. Full stop.

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