Alex Magaisa response to Herald article

By Dr Alex T. Magaisa

My attention has been drawn to a report in (The Herald , 5th April 2013) which suggests that daggers have been drawn against my person, in my capacity as Prime Minister Tsvangirai’s “legal adviser”, apparently for giving “wrong legal advice” to the Prime Minister in an elections-related case that is before the High Court.

This is odd.

First, I do not see any daggers, apart from those carried in the words of the malicious report. Secondly, I do not know the capacity of “legal adviser”. Thirdly, I may not be sufficiently knowledgeable about the ethics of journalism but I would imagine a decent journalist or newspaper would seek comment from the subject of his or her report before publishing.

In any event, it is a cardinal principle of natural justice and fair play that one is given an opportunity to be heard. None was sought from me and there is no reference in the report to any attempt to do so. Hence the view that it is a report that is motivated by malice.

I would not normally respond to malicious reports of this character but in the circumstances of this matter that would be a disservice to the public which deserves better. It is important to clarify certain matters.

While I have recently been and I am currently away from the office – and therefore have not been directly involved at the inception of this matter, I nevertheless take responsibility for my duties, as my position commands. It would be wrong to shift responsibility in any event.

The fact of the matter is that contrary to the information that has been disseminated through some quarters, the intervention by the Prime Minister in the case produced a positive outcome and therefore is a victory for good sense and democracy.

Brief facts of the matter are that 3 former MPs sought legal recourse through the courts to compel President Mugabe to set dates for by-elections in their constituencies. This matter has dragged on for a few years, with the President seeking and getting on two occasions the courts’ indulgence to delay the holding of by-elections.

The idea is that if harmonised elections are due to be held soon after the by-elections, the latter exercise would be a waste of resources. Therefore, it would make practical sense to “combine” the two elections by simply holding the harmonised elections and thereby avoiding the exercise of the by-elections.

On these issues, there is a general understanding and convergence between the principals. Admittedly, it does stretch the law but in a way that does not offend common sense.

As the March 31 2013 court deadline for President Mugabe to set dates for the by-elections approached, the Prime Minister raised this issue with his fellow principals and made it clear that the issue of by-elections should be dealt with separately from the harmonised elections and that it should not be used to rush the country into harmonised elections without consultations between the principals.

This is because consultations are premised on the fulfilment of certain fundamental reforms that must be made under the GPA and the envisaged Constitution to make the electoral ground level and fair. There was a general understanding that the harmonized elections would be subject to consultations.

When the court application submitted at the end of March on behalf of the President was drawn to the Prime Minister’s attention, there was an indication in the papers of an intention to hold the harmonised elections by June 29 2013, the basis upon which it was argued that there would be no need for by-elections.

I am advised that the plea to the court was for the President to be excused from setting dates for by-elections “on condition that harmonised elections are held by 29th June 2013”.

This, to the Prime Minister, appeared like an attempt by his co-principal to unilaterally set the date for general elections through a judicial process, contrary to their general understanding that there would be consultations in terms of the GPA and the Constitution.

Indeed, in his interview with the media in Rome, Justice Minister Patrick Chinamasa had stated plainly the intention to hold the harmonized elections by 29 June 2013.

This is what he objected to because the principals have not yet agreed on the date for elections. It was at this point that the Prime Minister sought to intervene in the matter, to protect the legitimate expectation contained in the GPA and the Constitution.

The Prime Minister’s major interest is that the key reforms that affect elections envisaged under the GPA and the Constitution must be implemented before elections are held. This needs more time than a June 29 deadline provides.

These reforms include, inter alia, media reforms, depoliticisation of the security sector, and realignment of existing laws with the new Constitution. The reforms will make the electoral environment better than the environment that existed in 2008 when inconclusive elections were held leading to the creation of the GNU.

When the matter came before the court, and after the Prime Minister’s legal representative informed the court of the Prime Minister’s intention to be joined to the proceedings in the context of the President’s specific reference to a harmonized election on or by June 29th 2013, the AG’s Office representing the President indicated that they would no longer be pursuing the argument regarding harmonized elections and would instead focus only on the by-elections issue.

I am advised that the AG’s Office undertook to abandon the argument that the President should be excused from the need to call for the by-elections “on condition that harmonized elections are held by 29 June 2013.”

Instead, the President would only seek to be excused from calling for by-elections. As a result, the Order sought by the President would have nothing to do with harmonised elections.

Essentially, they had changed the thrust of their initial application and climbed down from the position against which the Prime Minister had objected.

I am advised that the learned judge said in light of the changed position of the President, the Prime Minister might need to re-consider his application for joinder particularly as the application was largely premised on the initial reference by the President to harmonised elections.

Out of abundance of caution and to be sure, the Prime Minister sought written confirmation of this changed position from the AG. This confirmation was given through a written letter, and Heads of Arguments, both addressed to the Prime Minister’s lawyers.

I quote from the AG’s letter dated 4th April 2013: “In our current application in HC 2362/13 the President seeks to be excused altogether with publishing the proclamation in question as the political landscape has changed…..” (my emphasis).

Satisfied that he had achieved the outcome that he had sought in the first place, the Prime Minister formally withdrew his application for joinder. It was no longer necessary to pursue the application for joinder having achieved the result that he sought in the beginning.

He had managed to persuade his co-principal to drop the issue of harmonised elections from the application. Any further participation in the case would only have been of academic significance.

The Prime Minister therefore correctly exercised his right to prevent the circumvention through judicial process of the general understanding that the setting of dates for harmonised elections is a matter of consultation between the principals of the GPA.

If he had not intervened, in all likelihood the President would have pursued right to the end the application in its original form. This is what the Prime Minister thwarted and appears to have irked some people.

Contrary, therefore to what has been reported, the Prime Minister took the correct pre-emptive action to protect the legitimate interests of the people of Zimbabwe. He could have sat back and done nothing about it but he took leadership, as his position commands and got what he sought to achieve in the first place.

Alex Magaisa is the adviser to Prime Minister Morgan Tsvangirai. He can be reached on [email protected]