My dissent in Jealousy Mawarire vs Robert Mugabe: Tino Chinyoka

Jealousy Mbizvo Mawarire vs Robert Gabriel Mugabe N.O. et al

Judgment No. CCZ 1/13

Const. Application No. 146/2013

JEALOUSY MBIZVO MAWARIRE

v

(1) ROBERT GABRIEL MUGABE N.O.

(2) MORGAN RICHARD TSVANGIRAI N.O.

(3) ARTHUR GUSENI OLIVER MUTAMBARA N.O.

(4) WELSHMAN NCUBE

(5) THE ATTORNEY-GENERAL

CONSTITUTIONAL COURT OF ZIMBABWE

CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GARWE JA, GOWORA JA, PATEL JA, HLATSHWAYO JA, CHIWESHE AJA, GUVAVA AJA & CHINYOKA JA

HARARE, MAY 24 & 31, 2013

J Mandizha, for the applicant

T Hussein, for the first respondent

Adv Uriri, for the second respondent

Adv T. Mpofu, for the fourth respondent

No appearance for the third and fifth respondents

CHINYOKA AJA: I have had the opportunity to read the majority opinion written by our learned Chief Justice, as well as the dissenting opinions of MALABA DCJ and PATEL JA.

As a result, I will not explain the parties to these proceedings, and will indeed adopt my brother the Chief Justice’s abbreviations for the said parties. Those that wish to refresh their minds of the majority opinion and dissenting opinions in this case can of course do so by following this link: https://nehandaradio.com/2013/06/01/full-text-of-supreme-court-ruling-on-elections/ 

Having had the misfortune of the Clerk’s office neglecting to call me to the hearing (an issue I have taken with my brother the Chief Justice), I do have the dubious advantage of being able to write my opinion after the Court’s decision has been published, thus I am also able to take judicial notice of and comment on what the parties and the public have said about the decision.

While this makes my decision inconsequential to the disposition of the case, the Chief Justice assures me that my opinion is nevertheless valued. Whether this is in order to placate me following the mistake by the Clerk’s office is a question only entertained by puerile minds, the Chief Justice is a man of integrity and if he says that he values my opinion, it is because he values it.

As he was wont to say before his elevation from the High Court and I was still a mere lawyer trying to argue cases in this great man’s chambers, ‘those of us on the bench do not concern ourselves with fireside stories, but facts. Facts and the law’.

Statements after this decision was made, have not been helpful. Especially those from people that should know better. The one from Dr Lovemore Madhuku is especially not helpful. While his intelligence is beyond question, it being common cause that he got what was announced as a “super first class” degree from Cambridge university, the fact remains that he was opposed to the new constitution in the first place.

To hold elections in four months, when all the safeguards in the said new constitution have been implemented, would have given this new constitution a reasonably high chance of success. Now, Dr Madhuku has been on record as saying this new constitution was not by the people and would fail. It would be naive to assume that he is without self interest, or that he would say anything that might appear as if he wanted the constitution to succeed.

For the success of his argument, anything that places impediments on the new constitution is good. So to see him lauding the ‘principle’ in the majority decision but not the reasoning, you get the sense of a politician speaking and not a constitutional lawyer with a ‘super first class’ degree from Cambridge. That is the true construction of these facts, inconvenient as that might be.

One of the advantages of writing one’s opinion after reading the opinions from one’s colleagues on the bench is that one is left in the role of a commentator in a way, looking over the arguments and assessing whether these have been addressed in toto as the parties argued before the court, and indeed as the law stands.

This is not a moot point, but one that I point to because of its ‘revision’ role: the learned Justices who merely add, to the opinion as first drafted, a mere ‘I agree’, do not, as would appear to the lay person, do so out of laziness, but after thoroughly reading the opinion and, on the basis of am equally thorough interrogation of the facts and the arguments as raised before them, find themselves in agreement with the opinion so drafted.

Where the opinions are not split in the middle, it is fairly safe to regard this as good practice, especially where the issues are narrow and do not turn on complex matters addressing a lacuna in the law. It is a rare case for example, and takes a very brave judge, where the opinions across the bench might be equally divided, that a learned judge will merely pick a side with which to agree, and merely add ‘I agree.’

The Judicial Committee of the United Kingdom House of Lords held in In re Pinochet, Oral Judgment: 17 December 1998, Oral Judgment: 17 December 1998, [1999] UKHL 52  that an earlier decision had to be vacated and a new Committee set up to determine the matter when that precise thing happened, and it transpired that while there was no impropriety in Lord Hoffman merely ‘agreeeing’ with the majority (who only became a majority by virtue of his agreeing with them, having been evenly split before he cast his vote), the fact that members of his family had a tangential connection with Amnesty International, who in turn had what some might also call an equally tenuous and tangential but vocal connection (as is usually the case with that organisation, but that is an argument for another time) with the main issue in the case, such a vote did not lend the decision to the standards and high regard that Courts in general hold themselves to.

Fortunately, there is no suggestion in this case that any of my colleagues on the bench have been motivated by anything other than their duty to the court, statements by others including the Second Respondent and Fourth Respondent after this decision was published notwithstanding.

In fact, it is unfortunate that the Second Respondent and Fourth Respondent, both men that are well known for aspiring to the office of the First Respondent, think little about the damage to the overall integrity of this court caused by the issuing or causing to be issued statements or comments impugning the integrity of this court’s decisions.

And, while one might excuse the Second Respondent this aberration, (which has been called in some circles ‘foot-in-mouth’ disease due to it’s frequency) which has been fairly consistent throughout his the career in public life, Fourth Respondent is not only a qualified lawyer but a fairly (hithertofore) well respected constitutional lawyer, which means that he knows, or is presumed to know, the damage that statements issuing from his formation of the MDC is likely to cause to this Court.

But, back to the case at hand. Sometimes, a learned judge might agree with the overall conclusion but not with the reasons, and will then add their own opinion. Indeed, we have an example of that in this case, where two of my learned brother Justices have disagreed with the majority opinion, but for different reasons, and have appended their opinions to explain why. As will appear fully below, my dissent makes that three.

I start my decision with an issue that the my fellow justices appear to have ignored completely, but one which I did not put my finger on until the First Respondent effectively threw up his hands in the air and confessed to his negligence: Who is Jealousy Mawarire?

This is not an idle question. There are allegations, which I am aware would be dismissed by my brother the Chief Justice as ‘fireside stories’, to the effect that Jealousy Mawarire and his ‘Centre for Elections and Democracy in Southern Africa’ are in fact a front for the same security services, as will appear below, that other ‘fireside stories’ allege would have or indeed should have ‘dealt’ with him. It is common cause that the security services in question are known in this country as ‘The President’s Office’, to wit, they are run by the First Respondent.

It is a necessary requirement for the integrity of this Court to be preserved that litigants approach it with clean hands. This doctrine is well established in our law. This very Court has previously held, in Associated Newspapers of Zimbabwe (Pvt) Ltd v Minister for Information and Publicity in the President’s Office and Others 2004(2) SA 602 ZS  that “The Court will not grant relief to a litigant with dirty hands in the absence of good cause being shown …..”

However, I have, over the years, noted an element of selectivity in this Court’s approach to sound legal doctrine, a trajectory toward hubris and a partisan judicial legacy that I am sure my brother the Chief Justice does not wish to instill.

In the same Associated Newspapers case, this court refused relief to the newspaper company because it had refused to comply with an Act of Parliament that the company felt was unconstitutional, finding in that decision the company ought to have complied with the law first and then complain about it, a decision which, in the opinion of celebrated legal scholar and one of the bright lights out of our local universality, Alex Magaisa:

The implication is that citizens must first comply with a law even if that law violates their fundamental rights guaranteed by the constitution before challenging it in court. The ruling party can, at any time exercise its parliamentary majority to infringe people’s rights knowing fully well that they will be forced to comply as they cannot approach the court unless they have done so lest they be tainted with dirt for refusing to obey the law.

It raises the question of whether it is the constitution or an oppressive piece of legislation that they ought to obey. It makes a mockery of constitutional guarantees of protection and enjoyment of human rights to expect citizens to comply with infringing laws first before challenging them.

There may indeed be situations where giving away the rights in compliance with legislation will effectively close the door to the challenges against the law. For example where a piece of legislation deprives one of his entire property, if that person so complies, he will be left with no resources to make a constitutional challenge. It does not make sense that when faced with laws that violate their freedoms citizens should sit back and accept the violation and then complain afterwards.

The decision of the Supreme Court seems to be“Lose your rights first and then Complain later”. Ideally the court must ensure that rights of citizens are adequately protected by promoting their uninterrupted enjoyment. If a party has an opportunity to ask the court’s assistance to maintain the enjoyment of rights before a piece of legislation is used to violate them the court must take positive steps to ensure adequate guarantees are in place. (cited from http://www.kubatana.net/html/archive/legal/030924am.asp?sector=LEGAL )

It is therefore with a heavy does of irony surely that the majority has now held, in the interests of constitutionality and some might say a good deal of common sense and progressive intelligence that:

Even under the pre-2009 requirements, it appears to me that the applicant is entitled to approach this Court for relief. Certainly, this Court does not expect to appear before it only those who are dripping with the blood of the actual infringement of their rights or those who are shivering incoherently with the fear of the impending threat which has actually engulfed them. This Court will entertain even those who calmly perceive a looming infringement and issue a declaration or appropriate order to stave the threat, more so under the liberal post-2009 requirements.

One would hope that this enlightenment continues, and is not restricted only to cases where allegations of nefarious goings on exist.

If it is indeed the case that the First Respondent has caused one of his own officers to sue him in order to gain judicial cover for his intention to hold the elections at a date earlier than others intend, that would indeed be wrong. However, for that plan to work, it would require the connivance of not just the First Respondent, but more that half the entire bench of this court.

Some might see the elevation of a number of High Court Judges to sit on the panel in this case as evidence of an attempt to ‘pack’ the bench for precisely this same reason. This is especially so when one considers that under the current constitution, there are 5 judges of the Supreme Court.

To have a much higher number, for an application from a mere voter which presumably the First Respondent was going to oppose, does seem to fail what is colloquially referred to as ‘the smell test’. There is a lot in these changes and subsequent conduct by the First Respondent in effectively throwing in the towel and not really fighting the case that looks like something underhand is going on.

I take judicial notice of the fact that we haven’t heard of this applicant prior to now. Neither he nor his organisation have issued a statement on anything related to democracy, elections or human rights. One cannot find them on any website or human rights NGO archive. They have never been accredited to observe or monitor any elections.

They have not commented about the new Constitution, which one might say was the most pressing and relevant issue to democracy, human rights and elections, as their name suggests.  Their source of funding is not known, yet we have laws in this country that severely limit and scrutinise the funding for NGOs.

The stench of a set up, whereby the First Respondent would hire one of his minions to sue him and then put up a very shallow defence, with the hope that this Court finds in his favour, is hard to dismiss. It looks like something underhand is going on here. People are likely to suspect, and with good reason, that if something walks like a duck, quacks like a duck, and looks like a duck, chances are that it in fact is a duck.

Furthermore, it is indeed odd that an organisation presumably formed to promote free and fair elections and democracy would lodge an application the effect of which, if successful, is to lead to a chaotic election within a constrained amount of time and in the face of protestations from those fighting for such elections, and not in accordance with a new constitution.

The Applicant’s basis is fealty to the old constitution, but why would an organisation whose purpose is democracy and human rights insist that the letter, chapter and verse of a document that has just been replaced in a public referendum be followed, consequences be damned?

To suppose that by virtue of being appointed by the First Respondent all judges owe him unquestioning and uncritical loyalty would be wrong and insulting to this Court. First Respondent has been in power for a long time (no doubt Second and Fourth Respondents would phrase that as either “too long” or “overdue”). It follows that most judges on the bench will have been appointed by him. That would suggest that he consistently wins here. Yet, he does not.

It may well be that, rather than it being a fact, there was an expectation on the part of the First Respondent in machinating this elaborate trap that my learned fellow justices would find in a certain way. It is unfortunate that the majority, by finding as they did, have unwittingly fallen into first respondent’s trap.

The courts in this country have operated under very difficult circumstances, where judges routinely come across allegations that they were appointed by First Respondent to serve his interests, when in fact they are serving the constitution as faithfully as they are sworn to.

All the judges on this panel have, at one time or another, ruled against the First Respondent in cases where, had their integrity been otherwise, they would have done his bidding. One cannot forget my brother Justice Hlatshwayo JA, traveling over Harare in 2000 in a helicopter to see the size of queues of people waiting to vote, thus prompting him to order that voting in Harare (claimed in various circles as an ‘MDC stronghold’, whatever that means), be extended, or Chiweshe AJA’s recent bail rulings in cases that certainly would have been expected to cause the First Respondent some angst were the judges biddable.

Of course, one is aware that after making rulings that one might regard as going against First Respondent’s wishes, judges have suddenly found themselves the subject of corruption investigations. This is unfortunately how things are, and one would want to hope that by brother Malaba DCJ does not find himself in that situation soon owing to the forceful nature of his dissent, with which I agree in toto.

If indeed the Applicant is a member of the security services, then it speaks volumes about the view taken by the First Respondent of the judges that are appointed to this court. I would leave it to my brother judges to decide whether or not they find that their position is untenable in the circumstances.

I will therefore concern myself with matters of substance, not conjecture.

The Applicant is a typical example of how the system ought to work but usually does not: as I have observed he is certainly not one of the usual NGO officials that have tried from time to time to get an audience in this Court at one time or another, and, before the progressive approach taken in this case, not always successfully. He is, to use the vernacular in an not disrespectful manner at all: a mere voter.

I agree with the majority that a ‘mere voter’ has the right to approach this court whenever he/she feels that their rights in so far as voting is concerned are reasonably likely to be infringed upon.

I am especially in agreement with the learned Chief Justice’s statement, cited above, about not only accepting those ‘who are dripping with the blood of the actual infringement of their rights or those who are shivering incoherently with the fear of the impending threat which has actually engulfed them.’

When I refer to the Applicant as a “mere voter”, I of course choose my words deliberately. I am concerned that the majority have treated the Applicant under the ‘any person’ portions of the constitutional right to bring cases before this Court, yet the relief that he is seeking clearly requires that such an application be made by ‘any voter’.

This is so because in his founding papers, Mr Mawarire did not allege that he was representing anyone else other than himself. This is important. And I will illustrate why.

It is perfectly appropriate for an organisation involved with the campaign for a new constitution (for example the NCA), to approach this court in its own name and raise an issue of constitutional application on, say, the right to free association, or any other right in the constitution for that matter.

However, it would be odd for an organisation such as the one formed to look after the welfare of animals to approach this Court on a case about the death penalty and its constitutionality or otherwise. That would be outwith the aims of the organisation I should think.

I should of course add a proviso here that I am not in any way prejudging the merits or otherwise of the locus standi of either the NCA or the SPCA in any application that they may or may not present at a future date, and any attempt to cite this paragraph as precedence without this proviso will be doomed to fail.

I am merely using these in the very narrow sense of the example that I seek to make, while using names that people will be familiar with so as to lend clarity to this opinion.

Put in another way, if Mr Mawarire had made an application to this Court asking that we find that the ban on abortions violated his rights, we would not have heard him unless he then produced a treason why such a ban affected him.

That is not to say that a blanket ban on abortions (such as we effectively have) is not actionable as a violation of human rights, but there is no connection between a middle aged man with with nothing else beyond a name that would entitle him to sue for protection under the constitution.

So, there needs to be a nexus between the person suing and the right that they seek to enforce, otherwise there would be floods of speculative name seekers suing about this right and that just so as to occupy themselves and perhaps land their names into law reports.

The majority appears to have treated the Applicant as ‘any person’ for the purposes of bringing this application, thus finding that he had locus standi. I respectfully disagree with this approach. It is correct that our constitution, both old and new, allows ‘any person’ with a reasonable fear that their rights were about to be infringed to approach this court for relief.

However, by both the operation of law and practice, there appears to have been created in this country a separate class of people, whose names are known and kept by the Registrar General. I speak of course of ‘the voter’. A voter can indeed fall within the group of ‘any person’, but the reverse is not true, because not all persons are voters. Some are not voters because they choose not to, but many are not voters because, as one of the issues that Second and Fourth Respondent argue forcefully about, they have been disenfranchised by the conspiratorial negligence of the Registrar General, with the blessing of the First Respondent.

The voters register has variously been called ‘a shambles’, ‘full of dead people’ and ‘not fit for purpose’. Only people ‘lucky enough’ to find their names on this roll are voters, and have an interest in the date and timing of elections. And while it is necessary and indeed a progressive tenet of our democratic system that ‘any person’ can approach the court to complain about an actual or perceived infringement of the right to vote, it is not necessarily the case that ‘any person’ can approach this Court to seek any relief about anything connected with when they can get the chance to exercise that right.

It follows from my reasoning above that while any person is entitled to vote, and ‘any person’ can approach this court to press their right to vote, by virtue of the fact that only registered voters are entitled to vote in this country (and not, to be pedantic, ‘any person’), only a registered voter can bring an application about the timing of elections.

This is because of the nature of the relief that is sought. The Applicant wants this Court to order that elections be held by a certain date. If he is not a registered voter, such a date would only be of academic interest to him: having chosen to not participate in the electoral process by not being a voter, he has no interest in the date.

I am aware that some will seek to fault this reasoning by pointing out to a larger picture, namely that the application was really one about whether the Applicant’s right to protection of the law would be infringed by the perpetuation of a situation where ‘government’ operated for up to four months (as Second Respondent argued) without its Legislative arm.

However, those who subscribe to this argument fail to acknowledge one basic fact: the majority’s decision does not remove this perceived problem anyway. By holding that elections be held on or by 31 July 2013, the majority accepts that the ‘wider argument’ fails, at least for one month. I am indebted here to the insightful and faultless reasoning of my brother Malaba DCJ, to wit:

In this case there are provisions of the New Constitution relating to the conduct of the first elections which the President would have to take into account in fixing the date of the elections. As pointed out earlier, s 8 of Part 3 of the Sixth Schedule requires that the first elections be conducted in terms of an Electoral Law in conformity with the New Constitution.

Section 6(3) of the Part 3 of the Sixth Schedule requires that there be conducted by the Registrar-General of voters under the supervision of the Zimbabwe Electoral Commission a special and intensive voter registration and voters’ roll inspection exercise for at least thirty days after the publication day.

Section 157(3) of the New Constitution requires that the electoral Law must provide for the nomination of candidates in any election to take place at least fourteen days after the publication of the proclamation calling for that election. It further requires that the polling in that election must take place at least thirty days after the nomination of candidates.

The presumption of constitutionality requires that the President in the exercise of the discretionary powers vested in him should take into account all these factors in deciding to issue the proclamation fixing the day or days on which the “first elections” are to be held. All these factors are designed to ensure not only accountability to the electorate but also that the electorate plays a meaningful role in the election and make informed choices.

In all matters relating to the “first elections” [Cap.7] of the New Constitution is the supreme and binding law. The President would have to take into account the amendments which have to be made by Parliament to the Electoral Law and other regulations relating to the conduct of the elections to make them in conformity with the New Constitution. Section 157(5) provides that after a proclamation of the date of the first elections no amendment to the Electoral Law or to any law relating to the elections would have effect for the purposes of those elections. Any changes to such a law must be made before the proclamation is issued.

What all this means is that the President’s exercise of discretion in calling the first elections and fixing the date when the poll should be held must in itself be in conformity with the New Constitution. The applicant like all other potential voters must wait for the exercise by the President of his discretion in accordance with the law.

The applicant seems to have been driven into making the application by his aversion for what he calls a situation in which executive and judicial arms of the government can function for four months without Parliament.

The aversion is obviously based on the interpretation of the principle of separation of powers which is characteristic feature of constitutional democracy. Whilst the situation criticised by the applicant may be undesirable it is certainly not unconstitutional. It is a situation provided for by the Constitution.

The applicant exaggerates the case by saying that the second and fourth respondents want the affairs of the country to be run by the Executive and Judiciary without Parliament for four months. An honest and objective assessment of what the two respondents have said shows that they acknowledge that the President has a discretionary power to fix by proclamation the date of the first elections.

They accept that it is in the exercise of his discretion for the President to decide when within the period of four months after the date of the proclamation dissolving Parliament or the date of automatic dissolution of Parliament the first elections are to be held.

Zimbabwe is not the only constitutional democracy with a provision of a Constitution allowing for a period in which the affairs of the country can be run by the Executive and Judiciary without Parliament following its dissolution by operation of law at the of its full term. Section 55 of the Malaysian Constitution has already been referred to.

Article 16.3 of the Constitution of Ireland provides that after the dissolution of the Dail Eireann (Parliament) a general election for members of Parliament shall take place not later than thirty days after the dissolution. Article 15(2) of the Constitution of Andorra provides that the President has the power to choose a date of an election to fall between the thirtieth or fortieth days following the end of the term of the President.

Article 64.3 of the Constitution of Bulgaria provides that the date for an election shall fall within two months from the expiry of the life of Parliament. Article 73(1) of the Constitution of Croatia provides that elections for members of the Croatian Parliament shall be held not later than sixty days after the expiry of the mandate or dissolution of the Croatian Parliament.

Even in countries such as Canada where the date of a general election is fixed by legislation the situation the applicant criticises has not been avoided. In terms of the Canada Elections Act a general election is required to take place on 19 October of the end of four years of Parliament. The dissolution of Parliament by proclamation prematurely terminated the life of Parliament. As a result a general election which took place on 2 May 2011 the life of Parliament would end on 2 May 2015. The general election would have to be held five months later on 19 October 2015.

It is clear therefore that the principle that there can be a period following automatic dissolution of Parliament when the affairs of a country are run by the Executive and Judiciary is recognised. It is interesting to note that whilst the applicant is concerned about the fate of Parliament he does not seem to be interested in the need to comply with the requirements of the New Constitution designed to ensure that the electorate plays a meaningful role in the electoral process.

There is no doubt in my mind that these requirements of the New Constitution are designed to ensure that the first elections are truly a legitimate democratic instrument for the people to choose anmd control the authorities that will act in their name. Taking into account the importance of the first elections the New Constitution tries to guarantee the democratic character of the decision making on the date of the election.

There is no doubt in my mind that these requirements of the New Constitution are designed to ensure that the first elections are truly a legitimate democratic instrument for the people to choose and control the authorities that will act in their name. Taking into account the importance of the eletions the New Constitution tries to guarantee the democratic character of the decision making on the date of the election.

It appears to me that once it is accepted that the date of the first election can be fixed to take place after 29 June 2013 the whole basis of the applicant’s argument collapses. He then clearly falls in the “within four months after the automatic dissolution of Parliament argument”.

It also defeats logic for the majority to find that the President has broken the supreme law of the land and at the same time authorise him to continue acting unlawfully. That is a very dangerous principle to apply as it has no basis in law. The principle of the rule of law just does not permit of such an approach.

A finding that the President has a discretionary power under s 58(1) which he has to exercise within the prescribed time limits would clearly avoid such a contradictory order by the majority.

Why it is untenable for elections to be held with good preparation after the safeguards in the new constitution have been implemented under the supervision of  both the Executive and Judicial arms of ‘government’ over a four months period but is perfectly appropriate to have a patched up body elected through a rushed and consequently imperfect process that compounds the very unlawfulness that the Applicant accuses the Respondents of is not clear to me. Especially since, either way, ‘government’ will run for some time without Parliament.

By my reasoning, the Applicant ought to have shown that he is a registered voter, in the constituency that he claims, and disclosed where and when he registered. He should also have been required to produce his ID card, (driver’s licence not accepted), and show that he is a Zimbabwean whose parents did not come to this country from abroad, especially from any of the countries in the SADC region, or than if they did, he had renounced his entitlement to the citizenship of those countries. One cannot just assume from a reading of his name that he originates within Zimbabwe. To do so would be to discriminate (albeit positively in this case) on the basis of language or presumed origin, if there is such a thing.

These are not trivial matters, but matters through which ‘any person’ seeks to register as a ‘mere voter’ have to contend with when they approach the Registrar General for qualification as a voter.

Why the Applicant should not have to demonstrate his qualification in a case where he seeks relief that has the effect of changing the whole constitutional trajectory of the whole country from an orderly transaction from a discarded constitution to a new one adopted after an extensive (and, it has been stated and we take judicial notice of it, expensive) consultation process and a national referendum seems to me to be self defeating.

These are matters not only of national interest, but of great importance to anyone that was ready to vote and wanted to take advantage of the time given in the new Constitution to register to vote, including many people that, under the old Constitution, are not entitled to vote. Without anything to show that he had standing as a voter, I would have been reluctant to allow the relief sought.

This is especially so given the conduct taken by the First Respondent. This Court takes judicial notice of the news reports that allege that people who openly challenge the First Respondent are often themselves approached and ‘dealt with’ by state agents. Because there is no evidence of that before this court, the veracity or otherwise of these allegations, which, as I have alluded to, my brother the learned Chief Justice would call ‘fireside stories’, is not for discussion here.

Why I cite them here is precisely because these allegations are out there. Just because they are not based on any facts does not detract from the fact that because these allegations are there, people (and ‘mere voters’ like the Applicant, are bound to be afraid of the First Respondent.

Yet here we are, with an Applicant effectively accusing the First Respondent of dereliction of duty. And, the First Respondent not only fails to ‘deal’ with the Applicant through his security agents (which is consistent with there being no truth to such allegations I would suppose),  but effectively raises his hands up and says, effectively:

‘Yes, crucify me. I am such a bad, bad President, for failing to call elections by 30 June. I was being a naughty boy, wanting to run the country with the help of Tsvangirai and his ministers without a parliament. Naughty naughty naughty. Even though Parliament actually does nothing except what we say, I think you have caught me, and I plead guilty. Crucify me and condemn me for violating this innocent man his human right to vote. Do not bother checking with Mudede’s roll to see where he is registered to vote, this Jealousy Mawarire, just go ahead and crucify me for not following the law. And, while you are at it, tell me when to hold them as soon as possible, and definitely not within the four months that Tsvangirai and his people have been arguing about. Do not question the source of Jealosuy Mawatire’s funding or whatnot, I certainly won’t, he is a concerned citizen that merely wants his government to run lawfully. Why, why would anyone what to know why he did not file an application to challenge my election in 2008 or suggest that the country has been run illegally since then?’

There is no serious protestation that these matters are within the discretionary purview of his sovereign power as President, an argument that I like to believe would have found traction in this Court had it been argued with some force.

I have made reference to, and dismissed, allegations having to do with the Applicant and his supposed membership of a certain department of the security services. I have to say that it does not help dispel such allegations when First Respondent, for no apparent reason, takes this course of action that when challenged, raises up his hands and effectively pleads guilty to allegations of negligence and dereliction of duty.

It does not fill one with confidence that the country is in the hands of a functional Executive branch, when it can make so glaring an error, (which is what the First Respondent would have us accept it is), and then effectively throw himself at the mercy of this court.

But, having been seized with the matter, it is not the job of this court to provide judicial cover to the President’s negligence or dereliction of duty. The job of the Supreme Court is to interpret the law, and leave it at that. When such interpretation leaves the Executive or Legislature accused of negligence, it is for those bodies to fix.

For this court to hold up a calender and divine, without any evidence on how feasible that is, an election date, strays so far outside the interpretive role of this Court into making laws and executing them. That is judicial usurpation of powers that are vested in other bodies of the government.

While titillating for some, it is not for this house. Those that want to legislate must leave this house and join that side and, to quote the vernacular, as the first black Chief Justice of this country found out; it is a jungle out there.

The Supreme Court has no business making laws, no business fixing election dates  and definitely no business deciding the fate of a whole nation in a tangential manner. To suggest that the majority were not aware that the decision they made effectively curtails and cancels out the transitional process and safeguards put in place by the new constitutional arrangement would be naïve.

While no-one yet seriously and objectively believes that the Court takes its cue from the First Respondent, decisions such as these do not help cement a picture of judicial independence, but go a long way towards suggesting that there might be some grain of truth to those fireside stories after all.

I would dismiss the appeal for these, and the reasons cited by MALABA DCJ and Patel JA.

Tino Chinyoka is a respected Zimbabwean lawyer