Concourt upholds 31 July

Harare Bureau
THE Constitutional Court yesterday confirmed 31 July as the date for this year’s harmonised elections after throwing out five different applications that sought the postponement of the poll date to various dates in the month of August. The court upheld the proclamation made by President Mugabe on 13 June for the election and nomination dates, which was being challenged by Prime Minister Morgan Tsvangirai and MDC leader Professor Welshman Ncube.

Applications by Prime Minister Tsvangirai, Justice and Legal Affairs Minister Patrick Chinamasa, Professor Ncube, Bulawayo-based woman Ms Mariah Phiri and Mr Nixon Nyikadzino were all dismissed.

Chief Justice Godfrey Chidyausiku, sitting with eight other judges unanimously dismissed the applications indicating that reasons for judgment would be delivered in due course.

“After perusing the papers filed of record and hearing counsel in this matter, the court unanimously concludes that the applications should be and are hereby dismissed with no order as to costs.

“For the avoidance of doubt, elections should proceed on 31 July in terms of the proclamation by the President of Zimbabwe in compliance with the order of this court issued under CCZ1/2013.

“Reasons for judgment are to follow,” ruled the highest court of the land.
PM Tsvangirai and Prof Ncube’s bid to have the Presidential Powers (Temporary Measures) Act Chapter 10:20 to effect amendments to the Electoral Act set aside citing constitutional breaches also hit the snag as the court did not make an order in that respect.

During the day-long proceedings, the court at one point questioned the authority of Sadc in putting pressure on Minister Chinamasa, at its recent summit in Mozambique, to file an application for the postponement of the elections despite his appreciation that the case lacked merit.

This came after Minister Chinamasa’s lawyer Mr Fredrick Gijima told the court that his client did not want the postponement of elections but he was actually “whipped” into filing the court application by Sadc.

“My client has been whipped by Sadc to make the application. He is only before this court because he had been whipped by Sadc. There is no difference to him if the date is extended or not. It is up to the court to determine if he is properly before you,” said Mr Gijima.

Mr Gijima confirmed that his client was worried of what Sadc would do to him if he did not comply with its directive to file the application at the Constitutional Court. The lawyer lightened up the court as the gallery broke into laughter resulting in the Chief Justice thanking him for bringing entertainment to the court.

“Thank you Mr Gijima for entertaining us,” said the Chief Justice in jest.
In the proceedings, Deputy Chief Justice Luke Malaba pointed out that no court had jurisdiction to postpone the elections once the President has made his proclamation.

“Once a proclamation has been made and the election-related processes start to happen, no court has jurisdiction to postpone the date.
“Once the proclamation is there, the doors have been locked. The date is 31 July and everyone is looking forward to the day.

“Why didn’t your clients (PM Tsvangirai and Prof Ncube) come forward to seek extension of the deadline before the proclamation of the election date by 13 June?”

Advocate Thabani Mpofu, who acted for Prof Ncube and Ms Mariah Phiri, contested the position citing two case laws as he defended his clients’ position.

President Mugabe’s lawyer Mr Terence Hussein told the court that his client had fully complied with the court order granted on 31 May by proclaiming the poll date and that there was no legal basis for the court to push the date further than 31 July.

“The President proclaimed the election date and it triggered a variety of constitutional processes like nomination.
“Proclamation is already there and there is really no option. The election has to go ahead as per proclamation,” he said.

He argued that the proclamation was above board and that no constitutional rights were infringed.
PM Tsvangirai’s lawyer Adv Lewis Uriri argued that the proclamation by President Mugabe was constitutionally invalid and should be set aside.
He argued that the manner in which President Mugabe complied with the order was unconstitutional and that the court had powers to revisit its own decision and to postpone the proclaimed date of harmonised elections.

Mr Joseph Mandizha who was acting for Mr Jealousy Mawarire argued that the court could not postpone the proclaimed election date.
He strongly opposed the application for postponement adding that Ms Mariah Phiri had lied to the court that she did not have a national identity card and that she was not registered when it later turned out in court that she was actually a citizen of Zimbabwe who was registered to vote.

The same issue was raised by Deputy Chief Justice Malaba who argued that Ms Phiri had no reason to be in court because it was proven that she was not an alien and that she was a registered voter.

“We now know that Mariah Phiri is a citizen of Zimbabwe, she has a national identity card and that she is a registered voter in Bulawayo South (Sizinda) Ward 21. Without saying she lied, she did not tell us all that in her affidavit but the court now knows.
“What does she want from this court? What right is she still pursuing?” he said.

Chief Justice Chidyausiku came up with a suggestion.  “May be she wants to be accompanied to the polling station to vote.”