Legal and political implications of by-elections ruling
By Dr Alex T Magaisa
Readers may recall that we have been closely following the legal wrangle over the holding of by-elections in Zimbabwe. For two previous articles on this issue, please follow this link: http://newzimbabweconstitution.wordpress.com/2012/08/
The brief summary is that three MPs were expelled from the MDC that is led by Professor Welshman Ncube and subsequently lost their parliamentary seats. The vacant seats had to be filled through by-elections, the dates of which must be set by the President in accordance with section 39 of the Electoral Act. President Mugabe did not set dates for the by-elections. The aggrieved MPs sued the President seeking an order compelling him to set dates for the by-elections.
The High Court in 2011 rightly found in favour of the MPs and ordered the President to set dates for the by-elections. President Mugabe appealed to the Supreme Court which in July 2012 dismissed the appeal, correctly confirming the High Court order. The Supreme Court gave him an August 31 deadline to set dates for the by-elections. Meanwhile, during the period since the 2008 election, vacancies had arisen in other constituencies due largely to deaths of MPs and Senators. The decision in the case of the 3 constituencies therefore had implications for almost 40 vacant parliamentary seats.
Just before the August 31 deadline, President Mugabe made an urgent application at the High Court seeking an extension of the Supreme Court deadline. The High Court extended the deadline by up to a month. Towards the deadline, the President applied again for a further extension of the deadline, this time to the end of March 2013. Among reasons given for the extension was that the government has no money to organise the by-elections. Predictably, the High Court allowed the extension of the deadline.
Readers may recall that when the Supreme Court made its order, we said it was a legally correct but politically inconvenient decision:
5.1 It was inconvenient not just because of the alleged lack of resources but because with a General Election imminent within less than 12 months, the by-elections would be of no more than academic significance.
5.2 This would also mean two hotly contested elections in the same constituencies within a space of 12 months which does not make economic sense. The inconvenience also arose from the fact that by-elections would raise political temperatures, as election periods usually do, at a time when a coming together is required if the constitution-making process is to succeed.
5.3 Given that with almost 40 by-elections spread across the country, this would be a mini-general election which would give an overview of the parties’ electoral fortunes going into the main general elections next year. The stakes would be high with intense contestation which would potentially upset the tenuous political balance currently prevailing.
We weren’t convinced that there is an appetite for elections among the politicians across the board. There is therefore no surprise at the decision made by Judge Chiweshe, extending the deadline. What he has simply done is to transform a politically inconvenient order into a politically convenient one, never mind its legal and procedural weaknesses. As they say, there are cases where it’s all about the politics and little to do with the law and this was one of them.
Having said that it seems that there has been a general misreading of the High Court decision and its implications on the timing of next year’s general elections. From what we have read in the papers, the judgment states that “The period within which to comply with the order granted in case Number SC267/11 is hereby further extended to March 31 2013.” A lot of media reports seem to have come to the conclusion that this means the General Elections will definitely be held by the end of March 2013.
7.1 However, assuming that the quoted words are a correct representation of the court order, it does not follow that the General Elections will be held before the end of March 2013. We must recall that the Supreme Court order was not that by-elections must be held before the end of August 2012 but that the President complies with the order for setting dates for the by-elections by that date. Likewise, the extended deadline was not that the by-elections must be held by the end of September 2012. Rather, these were deadlines for the President to set dates for the by-elections to be held. Normally, under section 39 of the Electoral Act, the President must set the dates within 14 days of being notified that a vacancy has arisen. In this case, he was required to set dates by the stated deadlines. This did not mean elections had to be held by the deadline.
7.2 Similarly, the recent extension of the deadline for compliance by Judge Chiweshe to the end of March 2013 does not necessarily mean that the by-elections must be held by that date. It simply means President Mugabe has up to the end of March 2013 to set the dates for the by-elections and in effect the general elections, since the intention is to subsume the by-elections under the general elections. If he has up to March 2013 to comply with the order, the implication is that the elections could well be after March 2013.
7.3 It is important in this regard to note that the process of setting the date for nominations and the polling date in accordance with section 38 of the Electoral Act can take up to 10 weeks. This is because using the maximum possible periods allowed under the Electoral Act, the nomination date can be up to 3 weeks from the date of proclamation fixing the dates of elections per section 58 of the Constitution. Further, the actual date of the election can be any day up to 50 days from the nomination date. Therefore, the general elections could well be in early June 2013.
7.4 And before we get ahead of ourselves, we must note that the President could always make a further application for extension if things haven’t gone according to plan by the extended deadline! Therefore, things are far from as clear as they seem.
Consultations in Setting Election Dates?
8.1 A point of interest, though is the report in today’s Herald newspaper entitled “3 Principals Agreed to Poll Deal” (http://www.herald.co.zw/index.php?option=com_content&view=article&id=54049:3-principals-agreed-to-poll-deal&catid=37:top-stories&Itemid=130) suggesting that President Mugabe consulted his coalition partners, including Prime Minister Morgan Tsvangirai on the issue of extending the deadline. Assuming it is correct that Mugabe did consult and there was a consensus, the significant point here is that there was cross-party consultation on the issue of setting election dates.
8.2 The critical question that must be asked is whether this means President Mugabe will likewise consult his coalition partners on the setting of dates for the General Election and not claim that the space is exclusively his alone. Surely, if such consultation is good for the by-elections, it must be good for the General Elections, too. Otherwise, any inconsistency will be read as an attempt on this occasion to merely use the other principals to justify stretching the law for political convenience.
8.3 One hopes therefore, that when the time comes for the setting dates of the General Elections, the same spirit of consultation and pursuit of consensus will prevail.
Wamagaisa (2012)
