31 July Too Early For Elections – Coltart

Zimbabwe’s education minister Senator David Coltart has posted his analysis of a recent Constitutional Court decision to have elections done and dusted by 31 July.

Coltart who is a lawyer posted it on his Facebook page on Tuesday.

We publish it here unredacted.

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In my mind the nub of the majority judgment by Chief Justice Chiyausiku is the following passage:

“The first respondent (Mugabe) has placed himself in a serious legal quandary or predicament by his failure to issue the said proclamation timeously. The first respondent cannot remedy the situation by issuing the proclamation for elections to be held by 29 June 20l3, as doing so will inevitably contravene the time lines set out in s 38 of the Electoral Act. Prospective Parliamentary candidates are entitled, in terms of s 38 of the Electoral Act, to fourteen days to organise their nominations and thirty days to campaign before the date of the elections. Thus, affixing the date of the elections now in terms of s 58(1) of the Constitution in anticipation of the dissolution of Parliament on 29 June 2013 will have the effect of violating the fundamental right of aspiring Parliamentary candidates, entitling them to bring similar applications to that of the applicant.

Apart from this, the coming into operation of the new Constitution of Zimbabwe has further complicated the situation. The new Constitution has introduced new time lines and necessitated amendments to the Electoral Law, making the immediate issuance of a proclamation fixing the date for harmonised elections on the dissolution of Parliament on 29 June 2013 legally impossible.

The Court, in my view, is compelled to take into account the exigencies of this situation in the order that it makes. Thus compliance with the Court order must not of necessity compel the first respondent to contravene another electoral provision.

The applicant must have appreciated the first respondent’s legal predicament. In his draft order, the applicant asked for the immediate issuance of a proclamation fixing the date of the harmonised elections upon the dissolution of Parliament on 29 June 2013.

In the alternative, the applicant asked for the issuance of a proclamation forthwith setting the date of the harmonised elections by no later than 25 July 2013. I have no doubt that the applicant’s alternative relief is out of the realisation and appreciation of the first respondent’s legal predicament.

I am inclined to grant the alternative relief sought by the applicant and add six days to 25 July 2013 to compensate for the period between the hearing of this appeal and the handing down of this judgement.”

Whilst Malaba J in his dissenting judgment refers to Section 6 of the 6th Schedule of the new Constitution (ie the provisions requiring a minimum 30 day period of intensive voter registration and inspection after the publication date of the new Constitution) the Chief Justice, whilst acknowledging that there must be compliance with other “electoral provisions”, does not mention section 6 of the 6th Schedule in this section and so it is not worked into his time calculations.

In the result, and according to the principle enunciated by the Chief Justice himself ( ie “compliance with the Court order must not of necessity compel the first respondent to contravene another electoral provision”), the final date set for the election by the Court of the 31st July 2013 is at least a full 30 days earlier than it should be.