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Lulu Brenda Harris/Lungile Tshuma Chronicle Reporters
THE sitting of the Nomination Courts on Friday shows that the electoral process is progressing well and chances of delaying elections beyond 31 July are slim, analysts said yesterday. The western-sponsored MDC formations, Zapu, Mavambo/Kusile/Dawn and Zanu Ndonga filed court papers late last week, appealing for the extension of the election date to 14 August, claiming that the country needs to first reform the media and security sectors. The Government, through the Minister of Justice and Legal Affairs Patrick Chinamasa, had done so earlier after the Sadc extraordinary summit in Maputo, Mozambique suggested that be done.
But political analyst Professor Jonathan Moyo said the sitting of the Nomination Court was a testament that the harmonised elections would, indeed, take place on 31 July as ordered by the Constitutional Court.
He said judgment on the consolidated court application by the Government and MDC factions seeking an extension of the election date are likely to be only academic. He said it was impossible to ask for an extension or reversing the date because if that happened, it would cause damaging consequences to the country and its courts.
“Reversing it, altering it or stopping altogether can have far-reaching consequences which would be harmful to constitutionalism.
“For example, if the court accepts the arguments put forward by the two MDC formations regarding their allegations about the unconstitutionality of the Presidential Powers (Temporary Measures) Act, which were used to amend the Electoral Act that would bring about two utterly disastrous consequences,” Prof Moyo said.
“If that happens, we will have to go back to the Lancaster House Constitution and therefore we would have to do away with the women’s quota, do away with the new senate, do away with devolution that brought the provincial councils. We would also have the delimitation of constituencies, which we didn’t do because the new constitution said we should not do that for these elections but we should stick to boundaries, the 210 constituencies as they were in 2008.
“If we go back to the Lancaster House Constitution, the courts would have to strike down the electoral regulations as done under Presidential Powers (Temporary Measures) Act. We would be in that impossible situation where we can’t do anything. That’s the one disastrous situation.
“The other is that the two MDC formations were asking for amendments to be done by Parliament. They are asking the courts to order Presidential Powers (Temporary Measures) Act to be struck down so the amendments that were negotiated between the three Global Political Parties and approved by Cabinet on 11 June should be taken to Parliament.
“They are saying Parliament is the constitutional body that should make the electoral law as opposed to the President using his powers under the Temporary Measures Act. Well, the court will hear this argument on 4 July but there would be no Parliament to do that because Parliament has expired. That is also a disastrous situation, which they are praying for. They are praying for what is now not only unreasonable but also an impossibility. I can’t imagine a serious Constitutional Court ordering that Parliament must make amendments when there is no Parliament.
I can’t imagine that. It’s for these reasons which I believe we have water under the bridge. I believe the water is dirty, useless and this water was brought by the counter applications of the two MDC formations.”
Prof Moyo said if the MDCs wanted their counter applications to be successful, they should have filed them sooner rather than waiting for the last minute, which was after President Mugabe had made his proclamation of 31 July as the election date.
“If I had been them, I would have brought those, if need be, on 13 June when the President made the proclamation but to bring their application on 26 June, two days before the sitting of the Nomination Court, exposes them as not being serious but bent on creating confusion. The Constitutional Court has found a way of consolidating these applications, setting a date, 4 July, to hear them for our benefit as Zimbabwean academics and not have anything to do with the process that has started after the sitting of the Nomination Court.”
Professor Lovemore Madhuku, a constitutional law expert, said chances of extending the election date are non-existent because the Nomination Court has already sat.
“There is no chance of extending an election date. The case is now very much an academic issue which the court will decide. The Nomination Court sat based on Presidential Powers and they also sat for elections which will be held on 31 July not elections that are in the air.
“There is no reason why people should doubt that elections will be held on 31 July. This talk of reforms should not be taken into consideration. Reforms are good but they will be done after elections and at the moment the country has to go for elections,” said Prof Madhuku.
Talkzimbabwe, an online publication, also said the court is unlikely to see merit in the application as it has been overtaken by events.
“The Constitutional Court delay in making a decision on extending the date presents challenges for the MDCs,” it says.
“They have filed their nomination papers with the Zimbabwe Electoral Commission. The MDCs have scored an own goal in this matter, making the work of the Constitutional Court easy. The Constitutional Court now needs to merely proceed by upholding its original judgment on the basis that the (1) the President has already complied with the original order and (2) that the MDCs have already complied with the order given by the President through his proclamation. The MDCs won’t have a basis for seeking an extension on a date they have already complied with.”
It also argued that the dissolution of Parliament by operation of law on Saturday midnight also means the expiration of the post of Prime Minister.
Online Reporter