By Elias Mambo
14 June 2013
THE controversial Constitutional Court (Concourt) ruling that elections should be held by July 31 this year has placed President Robert Mugabe in a cauldron, given that he has to comply with the court order while at the same time upholding the constitution and provisions of the Electoral Act, which set timelines for the plebiscite.
Mugabe, who quickly embraced the judgment saying he would comply, is under immense pressure to also ensure provisions of the new constitution are not violated.
Mugabe, who has been pushing for early elections since 2010, is in a quandary because he will not be able to fully comply with the Concourt ruling while simultaneously upholding the Electoral Act.
Mugabe is also under pressure from Sadc and the MDC formations in the inclusive government who are demanding full implementation of democratic reforms outlined in the Global Political Agreement — precursor to the unity government.
The MDCs argue elections could be held by October 29 to allow the implementation of reforms since the constitution provides that elections can be held four months after dissolution of parliament on June 29.
Derek Matyszak, a researcher with the Research and Advocacy Unit (RAU) insists Mugabe has to uphold provisions of the new constitution if elections are to be credible.
“The new constitution provides that there must be a minimum of 30 days between nomination day and the elections, taking the earliest date for elections, if these laws are to be complied with, to August 3. The president cannot comply with both the Electoral Act and the constitution and the Concourt order all at the same time given these realities,” Matyszak wrote in the Independent last week.
He added: “The new constitution provides that the Electoral Act cannot be changed once the election dates have been announced. But the Electoral Act must be changed to accommodate the new provisions in the constitution relating to proportional representation before the election. Parliament, dominated by the MDC parties, is now unlikely to allow an early passage of the amending Bill.”
Besides the above processes, according to Matyszak, the new constitution also provides that there must be at least 44 days between the announcement of the election date and the actual elections.
If the amendment to the Electoral Act is only passed after June 17, and the president waits for the change to take place, as the constitution requires, before announcing the election dates, there will be less than 44 days left between the announcement of the elections date and July 31.
The 44 days are therefore the minimum period between the proclamation and the elections.
Four days after the Concourt ruling, Zec chairperson Rita Makarau said her commission would not be ready to supervise elections by July 31 as “the voters roll is still in a shambles.”
MDC-T, MDC, Zapu, Zanu Ndonga and Mavambo/Kusile/Dawn, in a rare show of solidarity, agreed to push Sadc to stop Mugabe from proclaiming election dates before full implementations of electoral and democratic reforms.
Sadc developed an elections roadmap to guide the country to credible, free and fair elections after the disputed 2008 elections and regional leaders demanded at summits in Livingstone, Zambia, Sandton in Johannesburg, South Africa, and in Luanda, Angola, the need for Zimbabwe to follow the roadmap prior to elections.
However, Zimbabwe Democracy Institute Director Pedzisai Ruhanya said Mugabe failed to foresee the impact of the Concourt ruling because he was pre-occupied by his rush to hold elections.
“Now he (Mugabe) is in a difficult position because he has to meet the deadline as well as implement the reforms in order to get legitimacy from the regional body, Sadc and the international community,” he said.
Ruhanya also said the other unforeseen effect of the court ruling was the opportunity it had given to the opposition parties to come together and fight from the same corner.
While Sadc, on numerous occasions, has been criticised for treating Mugabe with kid-gloves, analysts say it is unlikely that the regional body will rubber-stamp Zanu PF’s position, even if Mugabe is armed with the Concourt ruling. Public Policy and Governance manager at the Institute for a Democratic Alternative for Zimbabwe, Jabusile Shumba, said Sadc was likely to intensify pressure for credible elections.
“Sadc will intensify pressure on Mugabe because all other parties have shown how serious elections are by holding internal polls for candidates to represent them in the harmonised elections, except for Zanu PF which has not even finalised rules for its polls,” Shumba said.
Habakkuk Trust chief executive officer Dumisani Nkomo said the Concourt ruling was like a double-edged sword aimed at Mugabe.
“The ruling is a double-edged sword aimed at Mugabe, whose party is in a shambles and not even ready for its own internal elections and, on the other hand, Sadc requires the implementation of its initiated election roadmap,” Nkomo said.
“We have to see how Mugabe emerges out of this self-imposed conundrum without amputating part of his dignity,” he said.
Observers claim if Mugabe wants to comply with the ruling, he has to make sure that reforms are implemented and that all the electoral processes stipulated in the new constitution are followed to the letter, demands that make it practically impossible to meet the July 31 deadline.
Cabinet on Tuesday endorsed proposed amendments to align the Electoral Act with the new constitution, with prospective candidates for the forthcoming elections now being able to submit their nomination papers to Zec for scrutiny before the sitting of the nomination court, among other changes.
The Concourt ruling has also opened what could turn out to be a flood of petitions with individuals filing papers to stop elections from being held on July 31.
By Wednesday this week two people had approached the courts to file their petitions. Last Friday, A Bulawayo woman, Maria Phiri, filed a Supreme Court application seeking to overturn a Constitutional Court ruling to have polls held before July 31, while another Harare man, human rights activist Nixon Nyikadzino also made an application at the ConCourt on Monday seeking to compel Mugabe to proclaim an election date only after complying with constitutional requirements.
Pressure is also mounting on Mugabe who tomorrow will face regional leaders at the Sadc extra-ordinary summit in Maputo, Mozambique, which will deal with Zimbabwe’s preparedness for elections, poll funding and the contentious Concourt ruling.
Quoting the Latin maxim Lex non cogit ad impossibilia (the law does not require one to do the impossible) Zimbabwe Lawyers say Mugabe does not have to do what is practically and legally impossible to meet the July 31 deadline. Constitutional lawyer and MDC minister, David Coltart, suggested that the only way out of the “constitutional quagmire” is to go to the Constitutional Court for a fresh court order enabling the country to avoid being in contravention of other electoral provisions and the constitution.