Tsvangirai wants poll date proclamation nullified

The application came as MDC-T delegates from the country’s 10 provinces gathered in Harare to sign Mr Tsvangirai’s nomination papers ahead of the sitting of the Nomination Court at Mapondera Building on Thursday.

It also followed a recent meeting the MDC-T convened in the Zimbabwe Lawyers for Human Rights boardroom earlier this month to brainstorm on what it called “Strategic Election Litigation” designed to increase the workload of the Constitutional Court to prevent it from dealing with cases on time.

The meeting, which brought together 15 lawyers drawn from MDC-T and its allies in the NGO sector and legal fraternity, resolved to flood the Constitutional Courts with applications to subvert the implementation of the judgment ordering elections by July 31.

Justice and Legal Affairs Minister Patrick Chinamasa has since approached the court, on behalf of Government, seeking a two-week extension of the July 31 deadline to August 14 as suggested by Sadc at the instigation of the MDC formations.

In his application, Mr Tsvangirai wants the court to vary the order granted to Zaka East voter Mr Jealousy Mawarire compelling the President to proclaim the date for and hold harmonised elections by July 31.

Also See…

Mr Tsvangirai argues that the two-week extension sought by Minister Chinamasa, on behalf of Government, was insufficient to deal with MDC-T’s reform agenda ahead of the harmonised elections.

“Unless it has been withdrawn, or been set aside through Parliament, Proclamation 2 of 2013, SI86 of 2013, dated 13 June 2013, is declared null and void; and is set aside.
“Unless it has been withdrawn (whether pursuant to any resolution of Parliament under Section 4 of the Presidential Powers (Temporary Measures) Act, Chapter 10: 20 or otherwise), the Presidential Powers (Temporary Measurers) (Amendment of the Electoral Act) Regulations 2013, SI 85 2015 dated 12 June 2013 is declared null and void; and is set aside,” read part of the order sought.

Mr Tsvangirai also wants the court to direct President Mugabe and Minister Chinamasa to ensure a Bill for the Electoral Amendment Act As agreed in Cabinet on June 11 is presented to Parliament for debate not later than June 28 and that the three principals in the inclusive Government plus Professor Welshman Ncube and Minister Chinamasa “are directed to use their best endeavours to have the Bill passed and enacted, so as to bring the Electoral Law of Zimbabwe into conformity with its new Constitution”.

PM Tsvangirai also wants President Mugabe to issue an election proclamation prescribing the nomination and polling dates in terms of the Constitution after the Zimbabwe Electoral Commission certifies that an intensive voter registration and inspection exercise of at least 30 days has been completed and that the State has complied fully with its obligations in terms of the Constitution.

In his application MR Tsvangirai argues that although Cabinet met, discussed and agreed on various amendments to the Electoral Act, President Mugabe did not advice them that he would invoke the Presidential Powers (Temporary Measures) Act to amend the electoral law. PM Tsvangirai further attacks the President for setting June 28 as the date for the Nomination Court to sit ‘before the voter registration is completed on July 9’.

“In order to be a candidate, one has to be a registered voter and must be nominated by persons who are on the voters roll,” says PM Tsvangirai.
“The effect of this is that persons who want to participate as candidates or to nominate candidates are unable to do so, a clear breach of political rights enshrined in section 67 and other rights enshrined in the Constitution.

“In the process the voting public is denied the opportunity to participate in the full electoral process and is denied of as wide a choice as they would otherwise be entitled to.”
PM Tsvangirai further argues that the proclamation on the elections date was fraught with legal and practical challenges.

To this end the PM cited lack of funds as a stumbling block to carry out a meaningful election.
“As matters stand ZEC and the Registrar of Elections are working off very limited and in fact inadequate resources,” said PM Tsvangirai.

He added Zimbabwe was a member of the Sadc and a signatory to the regional bloc’s principles and guidelines governing democratic elections hence the July 31 deadline did not give the ZEC or Sadc enough time to prepare for the elections.

“In view of all the above, it is my humble view and request that not only is an extension is justified in the circumstances, but also that the two weeks extension sought by the second respondents in case CCZ35/13 is inadequate to deal properly with the issues,” he said.

“What informs me that a two-week extension is not adequate are considerations, as stated, that both the proclamation and the Presidential Electoral Regulations will have to be set aside, withdrawn or realigned to the law before a legitimate election can take place.

“I respectfully emphasise the need to prevent a legitimacy deficit which would plunge the country into further uncertainty.”
Meanwhile Minister Chinamasa has urged the Constitutional Court of Zimbabwe to invoke its discretional powers to interfere with its earlier judgment on election dates and urged the court to extend the poll date from July 31 to August 14 this year.

In the heads of argument filed by Government lawyer Mr Fredrick Gijima of Gijima and Partners law firm yesterday, Minister Chinamasa urged the Constitutional Court to invoke its powers to extend the date in line with a request by Sadc.

Mr Gijima filed the heads of argument yesterday morning ahead of the court hearing on Wednesday.
Minister Chinamasa’s case is set to be heard together with five other election-related matters.

Chief Justice Godfrey Chidyausiku gave the parties involved in the six cases up to yesterday (Monday) to file their heads of argument.
By 11am yesterday, only Minister Chinamasa had filed his papers in the main case while in another case, Ms Maria Phiri and Mr Jealousy Mawarire had filed their heads of argument.

In the heads of argument, Minister Chinamasa said the court should determine how the case would go bearing in mind that the May 31 order had already been complied with.
“This honourable court is now the highest court in the land and is urged to apply the same reasoning and invoke its powers of inherent jurisdiction to determine whether or not paragraph 4 of the order it issued under judgment Number CCZ1/13 should be extended from July 31 to August 14 2013.

“Being the highest court in the land, this honourable Court has inherent discretional powers to interfere with its own orders and judgments and further give directions as to how certain related matters should then be dealt with.

“This Honourable Court is being called upon to exercise its discretion and interfere with its own order in judgment CCZ1/13 specifically paragraph 4 by deleting July 31 2013 and substituting same with 14 August 2013,” read part of the heads of argument.

Minister Chinamasa insists that the President had fully complied with a court order of May 31 this year and that he had much respect for that ruling.
“Pursuant and in compliance with this order (May 31), His Excellency the President of the Republic of Zimbabwe Cde Robert Gabriel Mugabe, on June 13 2013 issued Proclamation 2 of 2013 under Statutory Instrument 86 of 2013 whereat paragraph (d) thereof he fixed ‘’Wednesday the 31st July 2013 as the day of the election of President, the election of members of the National Assembly and the election of councillors…’’”

Nomination Court date has already been declared as June 28.
Minister Chinamasa contends that Prime Minister Tsvangirai and Professor Welshman Ncube had misgivings with the court order and the manner in which President Mugabe had proclaimed the election date and lobbied Sadc to intervene and set aside the consequences of the court order.

Other parties in the poll date dispute are still to file their heads of argument. Advocated Thabani Mpofu, who is acting for Prof Ncube-led MDC yesterday, said he would file his papers today.

“We have prepared our papers. We are going to file them the first thing in the morning tomorrow,” said Adv Mpofu.
On June 15 Sadc at its summit in Maputo urged the Government of Zimbabwe, through Minister Chinamasa, to approach the Constitutional Court seeking extension of the election date to a date beyond July 31.