HARARE – A ruling by the Constitutional Court to hold harmonised polls by July 31 is likely to result in Zimbabwe holding a “sham poll” and infringe on other people’s rights, constitutional law experts warned yesterday.
The Constitutional Court led by Chief Justice Godfrey Chidyausiku on Friday ruled that elections should be held before July 31 and ordered President Robert Mugabe to proclaim poll dates as soon as possible.
Seven Constitutional Court judges ruled in favour of the July 31 poll date while Deputy Chief Justice Luke Malaba and Bharat Patel handed a dissenting judgment arguing that the Constitution allows for a four-month period from the date of the dissolution of Parliament.
The matter was brought to the Constitutional Court by director of Centre for Election Democracy in Southern Africa and journalist, Jealousy Mawarire, who argued the delay in announcing poll dates violated his constitutional rights as a voter.
Legal experts told the Daily News on Sunday that the court’s ruling will not only jeopardise chances of holding a free and fair election, but also infringes on other people’s rights as there will be procedures and processes that will not be followed if Mugabe was to abide by the court’s ruling.
David Coltart, legal secretary in Welshman Ncube’s MDC said the ruling violates other people’s rights to participate in the elections.
“The effect of the judgment will be to seriously undermine our chances of having credible elections,” said Coltart, who is also minister of Education, Sport, Arts and Culture.
“I foresee a variety of very serious logistical and legal challenges arising, including a denial of a few fundamental rights,” he said, adding that the new Constitution signed by Mugabe two weeks ago provides for a mandatory 30-day voter registration exercise.
The fresh voter registration exercise is expected to commence tomorrow.
“So assuming that the constitutionally mandated period of registration begins on Monday the 3rd of June, it must then run until the end of 3rd July,” Coltart said.
The MDC secretary for legal affairs and senator for Khumalo Constituency said the judgment could deprive first time voters who failed to register in the just-ended chaotic voter registration exercise their opportunity to participate in the coming elections.
Section 26A of the Act says that eligible voters must register no later than 24 hours before the nomination date,” said Coltart.
“It means that the nomination day cannot be before the 5th of July.
There have to be 28 days between the nomination day and the election which means the election cannot be before the 2nd of August if the Constitution and Electoral Act are to be complied with.
“If they are seen to be shambolic, illegal and conducted in a manner which denies Zimbabweans their basic rights, then they will lack at the very least the moral authority any new government will need to take the nation forward.”
Chris Mhike, one of Prime Minister Morgan Tsvangirai’s lawyers, said while Zimbabwe should respect the court findings, the ruling was anchored on the repealed Lancaster House Constitution.
“We are surprised that the honourable court orders and directs the president to proclaim dates for general elections in terms of the old Constitution, that is the 1979 Constitution, when as a matter of fact, the new Constitution of Zimbabwe provides explicitly that the next elections should be conducted in terms of the new law, not the old,” said Mhike.
Lovemore Madhuku, a law professor at the University of Zimbabwe, said elections should be held by July 31 as a sign of respect to the country’s Constitution.
“Politicians should work towards ensuring that it is feasible. It is the attitude of politicians that will make it possible or not,” Madhuku told the Daily News on Sunday.
“They must ensure that we have a voter registration starting now which could run for 14-days and put mechanisms that those people who will be 18 years on the election date are registered to vote.”
The constitutional law expert said no politician will have “moral authority” to govern Zimbabwe after June 30 when the current Parliament expires.
“It is better to have a bad election than have no elections. Their time is up and we should have elections as stated by the supreme law,” Madhuku added.
Apart from the legalities set out above, adequate funding for the poll is another hurdle that Mugabe and his coalition partners, Tsvangirai and Ncube will have to contend with in the coming weeks.
All hopes, according to Mugabe, now pin on the forthcoming extraordinary Sadc summit penciled in for Maputo in Mozambique on Sunday, which will discuss poll funding.
Meanwhile, the National Standing Committee of Tsvangirai’s MDC met in Harare yesterday to review the judgment of the Constitutional Court.
Although the MDC expressed misgivings on some of the aspects of the judgment, it resolved to abide by the decision of the court.
“The party reiterated that the date of the election must be process-driven,” said MDC spokesperson Douglas Mwonzora.
“In other words, it must be dependent upon the completion of key processes that have a bearing on the freeness and fairness of the election.
“These processes include the completion of the Ward-based, transparent and accessible voter registration exercise targeting all communities.
“After the voter registration exercise, there must be a period set for the inspection of the voters’ roll to make sure that it is correct and that all eligible voters are on it.
“The MDC also insists that media reforms which should guarantee reasonably equal and fair access by all contesting parties to the State media as enshrined in the new Constitution, must be completed before the election to ensure that there is an even playing field during the elections.”
Mwonzora said although Chapter 11 of the new Constitution now provides for security sector reforms by providing that members of security services must not act in a partisan manner and obey and respect the fundamental rights of the Zimbabwean people, a code of conduct must be drafted to govern the behaviour of members of security services during the elections.
“It is critical that Zimbabwe completes all legislative reforms to bring all legislation which have a bearing on elections into conformity with the Constitution,” he said.
“These include the Electoral Act, the Public Order and Security Act, the Access to Information and Protection of Privacy Act.”
Mwonzora said “the MDC is ready for free and fair elections in Zimbabwe.
“That means for the MDC the issue is not about the date of the elections.
“It is about the conditions under which these elections are held.” – Xolisani Ncube