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in the case in which PM Tsvangirai and MDC leader Professor Welshman Ncube want the Constitutional Court to extend the voting date from July 31, President Mugabe said the proclamation of the harmonised election date and the amendment of the Electoral Act were above board and according to the Constitution.
President Mugabe was responding jointly with Justice and Legal Affairs Minister Patrick Chinamasa, who is cited as the second respondent in the matter.
He said the court would create a crisis if it struck down Statutory Instrument 86 of 2013 which proclaimed July 31 as the election date and Statutory Instrument 85 of 2013 which amended the Electoral Act to pave way for the announcement of the election date.
The relief sought by PM Tsvangirai, President Mugabe said, was too late as the electoral procedures had already been set into motion, with the Nomination Court sitting last week to accept candidates for the harmonised election.
He said it was ironic that PM Tsvangirai had successfully filed his papers to contest the presidential election, with aspiring legislators and councillors from his party doing the same, that he now wanted to stop the elections.
“The applicant (PM Tsvangirai) should be counselled to trust the people of Zimbabwe who must now be allowed to choose their leaders,” said President Mugabe.
“He should use his position to facilitate this process and not to hinder it. It would be most improper for any reason to attempt to stand in the way of a process so important and so far-reaching on the basis of what clearly appears to be technical nit-picking.”
President Mugabe said the Constitutional Court could not annul the election date without violating “the vested rights and legitimate expectations of all those persons who had their nominations accepted and expect to be elected into various constitutional offices”.
“The Zimbabwean voters in excess of about six million also now have a vested right and interest in a process that has already commenced,” he said. “Such far-reaching and fundamental interest will not be lightly tampered with by the court.”
President Mugabe said the proclamation of the election date was a direct result and in obedience of the court which compelled him to hold the elections before or on July 31.
The court order on election dates, which was granted after a Zaka East-registered voter, Mr Jealousy Mawarire, filed an application to have the election on or before June 29 when the tenure of Parliament expired, was “cast in stone” contrary to what PM Tsvangirai told a Sadc extraordinary summit in Maputo a few days after the proclamation of the date, he said.
“Whilst the President was busying himself with ensuring that the order of this court was strictly adhered to, the applicant (PM Tsvangirai) went on a self-gratifying trajectory in the opposite direction,” he said.
“Whilst making very reluctant statements to the effect that he accepted the Mawarire judgment, his words and deeds at the appropriate times showed otherwise.
“Although we do not wish to engage in a character bludgeoning exercise, it is important to contextualise this application by statements and actions that have been placed on record by the applicant himself.”
President Mugabe said PM Tsvangirai rushed to Sadc after the promulgation of the Statutory Instruments believing, in his own words, that the regional body would resolve the issue.
“The applicant (PM Tsvangirai) made good on this and appeared before a Sadc extraordinary summit,” he said. “As a high ranking public officer of this country, one would have expected him to defend his country’s courts. He, however, unequivocally did the opposite.”
President Mugabe said striking the two Statutory Instruments would leave the Mawarire judgment “dangling and unsatisfied”, meaning the court would have passed a judgment of academic interest.
He said he used the Presidential Powers (Temporary Measures) Act to amend the Electoral Act because the court ruling in the Mawarire case imposed “very stringent timetables” which “created a scenario which made the normal legislative process non-viable”.
“Had the President awaited Parliament to enact the amendments, he ran the risk that the timeline set by the court would not have been met,” he said.
“The suggestion that he required to consult with the applicant (PM Tsvangirai) is misplaced as the Presidential Powers (Temporary Measures) Act do not contain such a provision nor does the Eighth Schedule to the former Constitution.”
He said the Presidential Powers (Temporary Measures) Act was promulgated specifically to delegate to the Head of State emergency legislative powers, which emergency was created by the tight timeline set by the court in the Mawarire case.
“It appears, after going through the amendments that in fact no prejudice would be suffered,” he said. “The only complaint the applicant (PM Tsvangirai) seems to have is that he was not consulted which frankly has no legal basis.”
President Mugabe said nullification of the Electoral Act amendments would take away the legal and constitutional framework to conduct the harmonised elections as there is no Parliament until the elections are held.
“Nullification of the regulations would lead to the country being run by persons and authorities outside the supreme law of the land, that is the Constitution,” he said.
“Nullification could lead to no election being held, a situation which would be completely unsatisfactory and unacceptable.”
Mr Mawarire also filed his response, saying the Constitutional Court acted within its confines by ordering the holding of elections on or before July 31 and could not reverse the decision.
“We argued that it is jurisprudently unprecedented for the Constitutional Court to do so let alone to do so at the request of losing litigants to the earlier court order,” said Mr Mawarire’s lawyer Mr Joseph Mandizha.
“It is unprecedented for the court to also do so at the acting of a political group of people in the form of Sadc.”
Mr Mandizha said declaring the declaration unlawful would amount to gross injustice since candidates had already filed their nomination papers.
The case is set for hearing tomorrow at the Constitutional Court.
Online Reporter