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“The learned judge misdirected himself in dismissing the respondent’s (President Mugabe) application. Special circumstances hampering him from carrying out his functions were cited in the opposing affidavit filed on his behalf,” said Adv Goba.
“These are the Senatorial, House of Assembly and local authority ward vacancies countrywide some of which became vacant before the constituencies subject to the present dispute.
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“The filling of all these vacancies requires substantial amounts of almost US$38 million,” Adv Goba said.
At that time, he argued, Government had no money to hold elections because of the economic downturn wrought by the Western sanctions regime.
He said the President made it clear that once informed by Finance Minister Tendai Biti of the availability of funds the election would be held expeditiously.
“The Appellant (President) is and was properly entitled to act in the manner he acted. He acted correctly in not carrying out that function to promulgate and order a new election,” Adv Goba said.
Justice Chidyausiku questioned if a single by-election cost US$38 million.
“If that argument is correct surely the first by-election was not costing US$38 million?” he asked saying the bench was simply testing the defence of impossibility of holding the by-election.
He also asked if the failure to hold the by-elections was not self-created as it was only around US$1 million to hold a by-election then.
Justice Chidyausiku said the law was not complied with when the first by-election was not held as prescribed in the Electoral Act.Adv Goba argued that funds for elections had to be budgeted for hence the failure to hold the election.
The three former legislators counter argued that the President failed to observe the law and the Supreme Court should uphold the lower court’s ruling and immediately order the Head of State and Government and Commander-in-Chief of the Zimbabwe Defence Forces to call for the by-elections.
The ex-legislators’ lawyer Mr Ndabazinhle Mazibuko argued that President Mugabe’s appeal was vague and was not in compliance with the court rules.
Mr Mazibuko averred that to order an election did not require US$38 million and the President ought to have gazetted and ordered for an election and let the
Zimbabwe Electoral Commission worry about funds.
“The appeal is misplaced and should not be before this court. The judge (Justice Ndou) exercised his discretion properly,” he said.
In terms of Section 4(1)(e) of the Constitution of Zimbabwe, the Clerk of Parliament notified the three that their membership had been terminated with effect from July 22 2009.
Bhebhe, Mguni and Mpofu were elected members of the House of Assembly in the 2008 general election under the MDC ticket and they fell out of favour with their party resulting in their expulsion in 2009.
Justice Nicholas Ndou in October last year directed the President to ensure the by-elections for the three vacant posts in Nkayi South, Bulilima East and Lupane East are held despite the financial challenges Government was facing.
This prompted the President to approach the Supreme Court seeking to overturn the lower court’s decision.
The Speaker of Parliament notified President Mugabe of the development as required by the law on August 17 2009.
The President did not make the expected proclamation, prompting the trio to approach the higher court.
Online Reporter