GAVIN GOMWE DISSERTATION (1)

‘A critical analysis of the advent of judicialisation of politics in light of Jealousy Mbizvo Mawarire v Robert Mugabe N.O. & Others CCZ 1/13’

BY

GAVIN GOMWE

2014

A DISSERTATION SUBMITTED IN PARTIAL FULFILLMENT OF THE BACHELOR OF LAWS (HONOURS) DEGREE [LL.B. HONS.]

SUPERVISOR: PROFESSOR L. MADHUKU

UNIVERSITY OF ZIMBABWE

FACULTY OF LAW

JUNE 2014

DEDICATION

__________________________________________________________________

I dedicate this momentous work to my parents, Bishops Mama & Baba Gomwe,

when one’s parents are able to see the vision well ahead of its time, it makes its

eventual fruition that much sweeter. Much thanks to dad for the patience,

running around and massive material support and mom for the constant

encouragement and prayers in what was an arduous journey.

My brother Gibson, for epitomising what an older brother should be like –

financial support, encouragement, inspiration. We dreamt of moments like this

when we were just boys. It is here.

Vanessa and Tatenda. The family has another graduate. Over to you.

It would be remiss not to conclude by thanking the Lord Almighty. Abba

Father.

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ACKNOWLEDGEMENTS

• Professor Madhuku my supervisor, this was not a crystal clear area of

the law, rather than discourage and put me off doing it, gave me the

green light to pursue it to its logical end.

• Musa Kika, for the insights at the tricky detailed proposal stage, and the

useful material.

• Abednigo Ndebele, an honour to have walked this road with such a

seasoned, battle hardened Provincial Magistrate. We shall surely meet

again in the courtroom.

• Dorothy Pasipanodya, that innate ability of yours to make me

temporarily suspend all manner of belief in mortality & push me beyond

my limits.

• Yassin Nhara, the friendship may have been birthed in the twilight years

of law school, but it shall surely be a friendship for life.

• Tichaona Nyamucherera, great friend, ridiculously cheerful.

• Ashton Makore, the jokes, but more crucially, the huge amount of time

we did not realise we spent in legal combat during exam time.

• Nyasha Savala, the complete companion, you stuck around even during

my dreaded phases of madness, but more importantly, took time to

know me even better than I know myself.

• And rather grotesquely, I salute one Gavin Gomwe, the ridiculous hours

spent idolising judges from across the world, the Grisham novels, you

were the source of inspiration, and boy oh boy, will you make one hell of

a lawyer!

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TABLE OF CONTENTS

1. INTRODUCTION PAGES

1.1 Background and brief summary of the study 6 -

10

1.2 Statement of the problem 10 -

11

1.3 Significance of the study 11

1.4 Research Methodology 12

1.5 Summary of contents 12 -

13

2. OVERVIEW OF JUDICIALISATION OF POLITICS

2.1 Definition 14

2.2 Traditional approach of courts to political questions 14 -

15

2.3 Advent of judicialisation of politics 16 -

17

2.4 Conclusion 17

3. OVERVIEW OF THE APPROACH OF THE COURTS TO

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POLITICAL MATTERS

3.1 Introduction 17

3.2 Overview of cases 1 9 -

24

3.3 Conclusion 24

4. THE MAWARIRE JUDGMENT: BACKGROUND, ANALYSIS

4.1 Background 25 -

27

4.2 The Judgment 27

4.2.1 The Facts of the case 27 - 28

4.2.2 Issues that fell for determination 28 -29

4.3 The Outcome 2 9 -

30

4.4 Majority Judgment 30

4.4.1 Analysis 30 - 41

4.5 The Minority Judgments 41

4.5.1 Analysis 41 - 44

4.6 Conclusion 44

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5. AFTERMATH OF THE CONSTITUTIONAL COURT JUDGMENT

5.1 Introduction 45

5.2 Significance of court approach in Mawarire case 45 -

47

5.3 Overview of select cases after the Mawarire Judgment 47 -

50

5.4 Comparative analysis of judicialisation of politics in other 51

Jurisdictions

5.4.1 South Africa 51 - 55

5.4.2 Canada 55 - 57

5.4.3 United States of America 57 - 59

5.5 Conclusion 59 -

60

6. CONCLUSION AND RECOMMENDATIONS

6.1 Introduction 61

6.2 Recommendations 61 -

65

6.3 Final Conclusion 65

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CHAPTER ONE

INTRODUCTION

1.1 Background and brief summary of the study

The expression 'judicialisation of politics' refers to the reliance on courts and

judicial means for addressing core moral predicaments, public policy questions

and political controversies. It is on the latter part of this definition, political

controversies,that this dissertation hinges. Judicialisation of politics thus

entails the expansion of judicial power well beyond adjudication in purely

orthodox means to embrace the core of politics and governmental policy.

Our courts have traditionally taken the position of being unwilling to take up

highly politically charged cases - apt instances include the refusal to take up

Morgan Tsvangirai's 2002 Presidential Election results challenge in the case of

Tsvangirai v Mugabe & Another, that ironically is still languishing at the

Supreme Court on a preliminary point and recently in the case of Mutambara v

Ncube, a case that had a direct bearing on Professor Arthur Mutambara's

standing as Deputy Prime Minister, in which the Supreme Court reserved

judgment indefinitely until Mutambabara withdrew his appeal after the

dissolution if the Government of National Unity ('GNU') citing the fact that the

matter had been overtaken by events. This position is best encapsulated by

remarks made by High Court Judge Chinembiri Bhunu at the opening of the

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High Court's 2006 Masvingo Circuit wherein the learned judge said,

It is, therefore, necessary to remind everyone concerned at this juncture that the

courts are neutral arbiters. They are neither for nor against anyone. The courts

will not help spring anyone into power nor help anyone to remain in power. Those

who desire political office must go to the people and not the courts. ' (my

emphasis)1

This is an important background as the judges seized with this matter in the

newly formed Constitutional Court ('ConCourt') were not fresh judicial

appointees. In fact, a week before the hearing, the Supreme Court, sitting as a

full bench of Chidyausiku CJ, Ziyambi, Garwe, Gowora, Omerjee JJA in

Chombo v Parliament of Zimbabwe & Others2 declined to grant permission

to an MDC T MP Tangwara Matimba to introduce a Private Member's Bill that

sought to make amendments to the Urban Councils Act that would have

dramatically watered down the extensive powers bestowed on central

government through the Minister of Local Government, Rural and Urban

Development over municipal and town councils reasoning that it was not

prepared to ‘upset the inclusivity of decisions’ in the Government of National

Unity.

The courts yet again in refusing upset the political 'apple cart' so to speak had

stuck to norm. The advent of judicialisation of politics in our country as

reflected by Jealousy Mbizvo Mawarire v Robert Mugabe N.O. & Others,

which forms the subject matter of this dissertation thus presents an about turn

1 'Judiciary only interprets the law': Justice Chinembiri Ernest Bhunu

February 15, 2006

http://www.herald.co.zw/inside.aspx?sectid=523&livedate=2/15/2006%2012:00:00%20AM&cat=10

2SC 107/12

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by our courts that are seemingly now willing to be players in settling our

nations' political controversies. Such a development merits discussion and

scrutiny. In casu, the issue before the Court was to determine the chronological

parameters mandated by the Constitution following the dissolution of

Parliament. The matter was the result of a urgent chamber application by a

private citizen, one Mr Jealousy Mawarire, whose claim was based on the fact

that the President was constitutionally obligated to set the dates for

Zimbabwe's next general election no later than the 29th of June 2013, which

was the day Parliament reached its constitutionally prescribed five year term.

What perhaps made this particular case and its concomitant judgment

fascinating, save for the extraordinary relief sought and subsequently granted,

was the fact that where the Supreme Court in the Chombo case (supra) was

unwilling to upset the ‘inclusivity of decisions’ of the those in the Government

of National Unity ('GNU'), which in essence was what the issue of election

dates boiled down to, viz. an agreement from all three Principals to the GNU as

to what would be the appropriate date for calling of an election. The ConCourt

sitting for the first time makes an about turn from previous court policy

alluded to above with regards to highly sensitive political matters, abrogating to

itself the task of resolving this crucial political question of election dates.

Furthermore, Chidyausiku CJ, who penned the majority judgment, embarked

on a wholesale use legal sophistry to arrive at what was, with respect, an

incorrect judgment. The lack of legal soundness of the judgment will be

explored in greater detail in the course of the dissertation but the point that is

to be made at this juncture is the manner in which this judgment was arrived

at, coupled with the Chidyausiku led Supreme Court’s history insofar as its

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interaction with the executive was concerned, opened the court to issues of

conjecture and speculation regarding its ability to be a neutral arbiter.

This is so when the following is taken into cognisance:

• President Robert Mugabe had repeatedly underscored his desire to hold

general elections after the passage of the new constitution into law on

the 22nd of May 2013, which ran counter to the wishes of fellow

partners in the GNU, the two MDC Formations, who insisted that

general elections could only be held, at the latest, constitutionally, on

the 29th of October 2013. As such the drastic relief sought by the

applicant seemed to fit very conveniently with the President's desire to

have an early poll. As such the President, who was the First Respondent

in this matter, unsuprisingly wholeheartedly agreed with the Applicant's

contention, posing instead a shallow defence thus creating the distinct

impression that his wishes of an early poll were covered in a judicial

cloak. It does not help matters that the judges in this matter still carried

the taint of the highly controversial land judgments that eroded any

semblance of judicial independence from political influence.

There was also need at the very least, for the applicant to show that he was a

registered voter, in the constituency he claimed and also disclosed where and

when he registered. The absence of an enquiry into applicant's qualification as

a voter in a case whose relief was going to radically alter the constitutional

trajectory of the nation seems almost self - defeating.

The court proceeded to make an order directing the President to call for an

election on or before July 31 based on what can best be described as a

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misconstruction of the straightforward import of section 58(1) of the Old

Constitution .

The hallmark of this decision can best be summed as, albeit unintended,

paving the way for judicialisation of politics in this country. Judges are, if this

case is anything to go by, readily stepping into the political limelight and

settling political questions that befuddle a democracy like ours.

1.2 Statement of the problem

This study was prompted by the need to define and analyse the practice of

judicialisation of politics, which is fast becoming a global phenomenon, that

has manifested itself in our jurisdiction, as reflected by the judgment that

forms the focal point of this study. Judicialisation of politics is not something

that has arisen overnight but has been there for quite some time in

jurisdictions across the world such as the United States of America, England,

closer to home in South Africa, just to name but a few. The point that is sought

to be driven home is judicialisation of politics has varying results in different

jurisdictions. A strong, independent judiciary operating with a fair measure of

institutional legitimacy may be best suited for such a role – however a wholly

dependant and weak judiciary, struggling with a tarnished image, risks losing

what semblance of integrity it has left by taking up such a role.

It is precisely in this latter aspect that our judiciary falls, and given the fact

that there is a general belief that we no longer have an independent judiciary

coupled with the suspicions alluded to above surrounding the Mawarire case

itself, it falls for determination in this study whether the advent of

judicialisation of politics in Zimbabwe at this juncture is a welcome

development that is worth embracing.

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1.3 Significance of the study

This study seeks to give a lucid analysis of judicialisation of politics, whose

presence became, albeit unintentionally, felt in our jurisdiction in the Mawarire

case that will be the reference point of this study. Through an evaluation of its

impact in different jurisdictions, this study will seek to impress upon whether it

is a worthwhile development that will benefit our judiciary or should be

discouraged. The study encourages rigorous debate on this new development in

our jurisdiction and puts forward academic arguments that have been put

forward by scholars on this area.

Theoretical Value: This dissertation will contribute to an understanding of

what judicialisation of politics entails, given it is a new development in our

jurisdiction, and will point to its varying degrees of acceptance or lack thereof

in the different jurisdictions that will be referred to. It thus will allow for an

informed take on whether such development in our jurisdiction is positive or

negative.

Delimitation: This dissertation will focus on scholarly articles penned on the

area of judicialisation of politics by various scholars coupled with the case law

revolving around the Mawarire judgment. The major statute that will be

referred to is the Lancaster House Constitution of Zimbabwe which has since

been super seeded by Amendment 20 to same that ushered in the New

Constitution of Zimbabwe.

1.4 Research Methodology

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• This dissertation will primarily be based on desktop as make ample use

of literature sources such as the statutes, case law and scholarly articles

that have been penned internationally.

• Perspectives gleaned from all these sources will recur throughout the

dissertation and should not be treated as separate findings save for

where the writer expressly states so.

1.5 Summary of contents

• This study will consist of six chapters.

• Chapter one will give a background and summary of the study,

significance of the study and will deal with the primary issues.

• Chapter two will give an overview of the practice of judicialisation of

politics.

• Chapter three will give a background to the approach our courts have

taken to political matters and their interaction with the Executive,

paying particular attention to the current bench which will serve as a

useful background to the case that forms the focal point of this

dissertation.

• Chapter four will give the background to and critically analyse the

Mawarire judgment, its majority and minority opinions and come to a

balanced assessment of its legal soundness or lack of.

• Chapter five will discuss and analyse the aftermath of the judgment

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paying particular attention to its bringing to the fore judicialisation of

politics and will also in so doing give a jurisdictional comparison of

countries that have adopted the practice in question.

• The final chapter will provide an evaluation of whether Zimbabwe is best

equipped, in spite of the growing popularity of judicialisation of politics,

and in light of the current state of our judiciary, to adopt such a practice

and will proffer recommendations.

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CHAPTER TWO

OVERVIEW OF JUDICIALISATION OF POLITICS

‘it was a typical situation of gold going rusty to the utter amazement of

hardwood. Here was a case in which one of the problems that many less –

established democracies grappled with on an ongoing basis knocked

audaciously at the door of the world’s most advanced system & practitioner’3

Basil Ugochukwu on Bush v Gore

2.1 Definition

Judicialisation of politics is not a term that belies easy definition because more

importantly, there is no plain and simple answer to the question ‘what is

political?’ and as such there is no plain and simple definition of judicialisation

of politics. Be that as it may, it has generally been accepted that it refers to the

growing reliance on the courts and judicial means for addressing core moral

predicaments, public policy questions and more often than not, political

controversies. As such under such practice judicial power is expanded well

beyond adjudication in purely orthodox terms, but instead embraces the core of

politics and governmental policy.

2.2 Traditional approach of courts to political questions

3 Ugochukwu, B ‘The Pathology of Judicialization: Politics, Corruption and the Courts in Nigeria’ The Law and Development Review: Vol 4: No.3, Article 4http://www.osgoode.yorku.ca/sites/default/files/research/Ugochukwu%20-%20LDR%20Article.pdf

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http://www.osgoode.yorku.ca/sites/default/files/research/Ugochukwu%20-%20LDR%20Article.pdf

Politics was traditionally thought to be a game for politicians alone and political

questions were best resolved politically rather than considered issues for the

courts. The main reason behind this was political questions had a significant

effect on governmental policy and as such any policy dilemmas that would

result from tackling of said political questions was better resolved from

politically accountable branches of government and as such the courts were

inappropriate forums to decide on such cases. Indeed, in the famous United

States of America Supreme Court case on political questions of Baker v Carr4,

the court pointed out that rendering a judicial decision involving a political

question would antagonize separation of powers principles. Among the reasons

proffered by the court were, inter alia:

• The impossibility of a court undertaking on reaching an independent

resolution without expressing lack of respect that is due to other

branches of government

• The likelihood of embarrassment stemming from multifarious

pronouncements by various departments on one question.

Furthermore, compelling reasons have been advanced for past reluctance to

allow courts to adjudicate over political controversies. As Ron Hirschl5 notes,

adjudicating such matters is an inherently and substantively political exercise

that extends beyond the application of rights provisions or basic procedural

justice norms to various public policy realms6. Where there are pressing

political questions involving very high political stakes for the nation there may

be little or no constitutional guidelines and as such court intervention may be

4 (1962) 369 U.S. 1865 Hirschl, R ‘Judicialization of Politics’ The Oxford Handbook of Law and Politics http://qr.jur.lu.se/Quickplace/juan02/Main.nsf/0/7BA763D5DCA73F3CC1257C1C00318397/$file/hirschl.pdf6 At 3

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viewed as inappropriate, the populace seemingly being best suited to

contemplate and decide such matters through its elected and accountable

representatives.

2.3 Advent of judicialisation of politics

The anxiety of the courts to settle political questions as expressed in the above

sentiments has however subsided over time. The advent of judicialisation of

politics has not only seen the courts adjudicate and settle political questions

but it now also includes the wholesale transfer to the courts some of the most

pertinent and polemical political controversies a democratic polity can

contemplate7, an apt instance being the United States Supreme Court for the

first time in its history on November 12, 2000 giving the final decision on who

was to be President of that country. It has been said that the phenomenon of

judicialised politics under the guise of adjudication continues to penetrate legal

regimes across the world8

J. Ferejohn9 has identified three main ways courts have taken on new political

roles which were more synonymous with the more political arms of

government. Firstly is the willingness and ability of the courts to limit and

regulate the exercise of Parliamentary authority by imposing substantive limits

on the power of Legislative institutions. Secondly the courts are places where

substantive policy is made and lastly, crucially, courts have shown enthusiasm

in regulating political activity itself. This latter aspect will be paid particular

7 Hirschl, R ‘The New Constitution and the Judicialization of Pure Politics Worldwide’ 75 Fordham Law Review, 721 (2006) 8 Ugochukwu, B ‘The Pathology of Judicialization: Politics, Corruption and the Courts in Nigeria’ The Law and Development Review: Vol 4: No.3, Article 9 Ferejohn J, ‘Judicialising Politics, Politicizing Law’, 65 Law & Contemp. Probs. 41 (2002)

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attention to for the purposes of this study.

An obvious question that may arise though is how does a political question find

its way into a court of law? How would the would be litigant establish locus

standi? Invariably, the political questions are framed as constitutional issues.

This is bearing in the mind the fact that the court possesses an inherent

judicial review power. For example in the Mawarire judgment that forms the

focal point of this study, the court was, from a simplistic standpoint, being

asked to set an election date by the applicant, which was a political decision

that fell under the purview of the President. But for purposes of the case, the

Court tackled the case as a constitutional application in which the court was

seized with interpreting section 58(1) of the Lancaster House Constitution of

Zimbabwe.

2.4 Conclusion

In conclusion it is evident that under judicialisation of politics, political

questions are deemed considered issues for determination by courts of law. In a

thriving democracy that boasts a strong and independent judiciary, the use of

the courts to settle political stalemates certainly may aid national progress. The

converse of this may not however hold true.

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CHAPTER THREE

OVERVIEW OF THE APPROACH OF THE COURTS TO POLITICAL MATTERS

‘those of us on the bench do not concern ourselves with fireside stories, but facts.

Facts and the law’10

G.C. Chidyausiku, Chief Justice.

3.1 Introduction

The appointment of current Chief Justice Godfrey Chidyausiku was an

inglorious one that came in the aftermath of the forced retirement of former

Chief Justice Anthony Gubbay after the Government had taken the decision to

reconstitute the Supreme Court and appoint judges perceived to be

sympathetic to its cause after the fast track land acquisition and resettlement

programme gathered pace. Our courts since then under the Chidyausiku CJ

led Supreme Court have deliberately taken a ‘hands off’ approach with regards

to highly politically charged cases, coupled with demonstrating a tendency in

high profile and electoral cases to lend its process to the service of the State. In

cases challenging the constitutionality or legitimacy of measures that are

clearly in violation of the law the Supreme Court has departed from established

legal principle in order to legitimate executive action. This has left one with the

10 Chinyoka T, ‘My dissent in Jealousy Mawarire vs Robert Mugabe’http://nehandaradio.com/2013/06/07/my-dissent-in-jealousy-mawarire-vs-robert-mugabe-tino-chinyoka/

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http://nehandaradio.com/2013/06/07/my-dissent-in-jealousy-mawarire-vs-robert-mugabe-tino-chinyoka/

uncomfortable feeling that judicial independence at this point in time exists

solely at the whims of the Executive.

3.2 Overview of cases

The inclination particularly by the Chidyausiku CJ led Supreme Court has

been to avoid highly politically charged cases. This has been subtly interwoven

with a tendency to side with the Executive in such high profile cases and

electoral cases. In Tsvangirai v Registrar General of Elections & Ors11

Morgan Tsvangirai, the leader of the opposition, was standing in the

Presidential Election against President Mugabe. The President just prior to the

election passed a raft of measures purpoting to drastically alter the election

laws (when ironically he was a candidate in that very election) and Tsvangirai

sought to challenge the legality of these measures. Chidyausiku CJ handing

down the judgment of the majority ducked the issue by making a finding that

Morgan Tsvangirai had no locus standi to bring the application, starting a

familiar pattern by the courts of not ruling against the Executive in cases of

that nature.

Tsvangirai’s Presidential Election (March 2002) Challenge served as a the

stiffest credibility test for our nation’s electoral process, but more importantly

would have gone some way in showing that the judges would not follow the

pattern of towing the line of the executive in cases of this nature. At the end of

the hearing presiding judge Hlatshwayo J reserved judgment indefinitely and

11 SC – 20 - 2002

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after a seven month delay issued an unspeaking order dismissing the

challenge, crucially not furnishing reasons for his judgment. The learned judge

had had this to say about the challenge prior to the hearing:

‘this is not a story about a pound of flesh but a serious matter concerning the

heart of the nation12’

After a fruitless delay of over two years to get the reasons for judgment from

the presiding judge counsel for Tsvangirai made an application at the Supreme

Court for redress in terms of section 24(1) of the Constitution alleging that the

rights of protection of the law and a fair hearing within in a reasonable time

had been violated in Tsvangirai v Mugabe & Anor13. The Supreme Court

dismissed the application reasoning that as the order dismissing the challenge

handed down by the judge in the court a quo related to the preliminary points

raised by the appellant and the trial of the election petition never reached its

logical conclusion, a referral to the Supreme Court for a Bill of Rights

infringement does not lie to that court where a judge has not expressly made

one, effectively ending Tsvangirai’s hopes of an electoral challenge. Thus yet

again the again the Supreme Court had conveniently ducked a high profile

political case, on this occasion on the basis of a legal technicality. It is worth

noting that Tsvangirai’s challenge to the 2002 Presidential Election proper is

still in the Supreme Court on a preliminary point.

High Court judge Justice Bhunu perhaps best summed up this approach by

our courts at the opening of the High Court’s 2006 Masvingo Circuit wherein

the learned judge said,

It is, therefore, necessary to remind everyone concerned at this juncture that the

12 Chikuhwa J W ‘A Crisis of Governance: Zimbabwe’ p134,. Algora Publishing (2004) 13 SC 84/05

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courts are neutral arbiters. They are neither for or against anyone. The courts will

not help anyone spring into power nor help anyone remain in power. Those who

desire political office must go to the people and not the courts.’14

This is precisely the stance the newly established Electoral Court took in

handling the electoral petitions emanating from the 2008 harmonised general

elections. MDC-T had won 99 seats against ZANU-PF’s 97. ZANU PF was

challenging results in 53 constituencies while MDC-T was challenging results

in 52 constituencies. Given the close nature of the results, whatever decision

was going to come from the Electoral Court had the potential to radically alter

the political demographics of the next Parliament.

The Electoral Court under the headship of Makarau JP (as she then was) took

the deliberate stance of dismissing all the applications on the basis of a

number of technical issues, reasserting the stance that the courts would not

involve themselves in the political affairs of the nation. In Omar v Matutu &

Ors15 which was an election petition, the petitioner was aggrieved by the

declaration of first respondent as duly elected member of the House of

Assembly for Masvingo Urban House of Assembly Constituency citing various

irregularities in the conduct of the poll and counting of votes. Makarau JP

dismissed the petition on the basis of the petitioner serving the first respondent

at Harvest House, first respondent’s place of employment, and not personally,

as per law. Petitioner also failed to serve the petition within 10 days, doing so

on the 11th day, the learned judge arriving at the conclusion that the Electoral

Court as a creature of statute with no inherent powers had no power to

14 Bhunu J ‘Judiciary only interprets the law’. February 15, 2006

http://www.herald.co.zw/inside.aspx?

sectid=523&livedate=2/15/2006%2012:00:00%20AM&cat=10

15 HH – 74 - 08

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condone a petition served out of time. This was an apt instance of the court

determining and dismissing the matter on the basis of technicalities and not

hearing it on its merits.

The Supreme Court bench in particular under Chidyausiku CJ has also

displayed a tendency of lending its process to the service of the State in high

profile cases – in cases challenging the constitutionality or legitimacy of

measures that are clearly in violation of the law the Supreme Court has opted

to depart from established legal principle in order to legitimate executive action.

An apt example was in Associated Newspapers of Zimbabwe (Pvt) Ltd v

Minister of State in the President’s Office & Ors16 where the Supreme Court

used the much maligned ‘dirty hands’ doctrine to block a legitimate challenge

by an independent newspaper on the legality of new legislation – the Access to

Information and Protection of Privacy Act17, which imposed undemocratic

Government controls over the operations of newspapers and journalists.

Needless to say the judgment directly led to the closure of the only independent

newspaper at the time.

In land cases, the highly political nature of the Government’s land acquisition

and resettlement programme coupled with some judges being direct

beneficiaries of the programme18 meant in essence the trend of our courts being

complicit in their support of the Executive in high profile cases would continue

unabated. It began from the very onset in Minister of Lands, Agriculture &

16 S – 20 – 200317 Chapter [10:27]18 16 Supreme and High Court Judges including Chidyausiku CJ owned large farms ranging in size between 540 to 1380 hectares [see Southal R ‘Too Soon To Tell? Land Reform in Zimbabwe’ (2011) ]d-nb.info/102441471X/34

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Rural Resettlement & Others v Commercial Farmers Union19 where the

newly appointed Chief Justice Chidyausiku dismissed an application by the

Commercial Farmers Union (‘CFU’), in terse and very strong terms, that he

should recuse himself because of his close association with the ruling party

and more importantly, his previous statements endorsing the Government’s

land policy – and he and three newly appointed judges (Cheda, Malaba,

Ziyambi JJA) ruled that the Government had fully complied with the Supreme

Court order20 to put in place a lawful programme of land reform that was in

conformity with the Constitution in spite of the fact that the CFU had furnished

detailed evidence that the rule of law had not been restored and the farmers

were still being prevented unlawfully from conducting their operations.

Interestingly Ebrahim JA dissenting expressed the opinion that the majority

decision had been predicated not on issues of law, but on issues of political

expediency. This observation was to prove apposite as not a single land case

heard on appeal at the Supreme Court went against the State, the death knell

with regards to land cases being sounded by Chidyausiku CJ in Commercial

Farmers Union et al. v Minister of Lands & Rural Resettlement et al.21

wherein the learned Chief Justice (Malaba DCJ, Ziyambi, Garwe, Cheda JJA

concurring) seeking to give finality to the issue declared expressly that the

human rights protections enshrined in Zimbabwe’s Constitution were subject

to those provisions of the Constitution providing for the land reform program.

He stated:

‘The land previously owned by the individual applicants was acquired by the

State in terms of s 16B of the Constitution. Section 16B has an overriding effect

19 2001(2) ZLR 457 (S)20 Commercial Farmers Union v Minister of Lands & Ors 2000(2) ZLR 469(S)21 SC 31/10

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on other sections of Chapter III of the Constitution.’ (my emphasis)

This interpretative approach by the Supreme Court which eschewed any

reliance on international law in favour of a strict and literal defence of the

legislature fit conveniently with the political scheme of things in which the

Supreme Court pandered to the whims and caprices of Government on the land

issue.

3.3 Conclusion

It is clear that it has been the traditional policy of our courts to shy away from

highly political matters that arise for determination. While there are merits in

this stance more so given the fact that the judicial independence of courts

relies solely on the whims of the Executive, the same cannot be said of the

propensity of our courts to side with the Executive in high profile cases as has

been highlighted in the foregoing. It is with this background in mind that has

been given in this chapter that the study proceeds to dissect the case that is

the focal point of this dissertation.

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CHAPTER FOUR

THE MAWARIRE JUDGMENT: BACKGROUND, ANALYSIS

‘it is much easier for a camel to pass through the eye of a needle

than for this decision to make sense’22

Percy F. Makombe

4.1 Background

On the 22nd of May 2013 President Robert Mugabe assented to Zimbabwe’s New

Constitution, signing it into law and replacing the 1980 Lancaster House

Constitution (‘Old Constitution’). This was an important development as it took

the nation a step closer to paving the way for the holding of general elections

under a new Constitutional dispensation. Barely a week later on Friday 31st

May 2013 the Constitutional Court, created as per section 166 of the New

Constitution of Zimbabwe, issued its first judgment, Jealousy Mbizvo

Mawarire v Robert Gabriel Mugabe N.O. & Ors23 which took many off guard

and abrogated itself the role of taking the final step to the holding of general

elections by ordering President Mugabe to hold elections by the 31st of July

2013.

There had been many curious facets to this case even before judgment was

handed down. President Mugabe had repeatedly underscored his desire to hold

22 Makombe, F ‘Court Poll decision is legal sophistry’ http://www.legalbrief.co.za/article.php?story=2013061010120278023 CCZ 1/13

26 | P a g e

elections as soon as possible after the passage into law of the New Constitution

well before the 29th of October 2013 which was the date contended by the MDC

formations as being the latest constitutional date for the poll. This was further

complicated by the insistence of the MDC formations and the Southern Africa

Development Community (SADC) who were the guarantors to the Global

Political Agreement (GPA) that formed the Government of National Unity (‘GNU’)

that all various reforms had to take place before elections.

A week before the Constitutional Court heard the case, the Supreme Court had

handed down judgment in Chombo v Parliament of Zimbabwe & Ors24 a case

with significant political overtones in that in casu MDC T Member of Parliament

sought to introduce a Private Member’s Bill that sought to make amendments

to the Urban Councils Act25 that would have dramatically watered down the

extensive powers bestowed on Central Government through the Minister of

Local Government, Rural and Urban Development over municipal and town

councils. The Bill had received a non – adverse report from the Parliamentary

Legal Committee. Judicial intervention in the passage of Bills through

Parliament was traditionally discouraged as it would open the door to political

manoeuvring. In spite of that the Supreme Court nullified the Bill, stating that

it was prohibited by Article 20.1.2 of the GPA as set out in schedule 8 to the

Constitution. The Supreme Court sitting as a full bench of Chidyausiku CJ,

Ziyambi, Garwe, Gowora, Omerjee JJA accepted the argument put forward on

behalf of the Minister of Local Government, Rural and Urban Development

that,

‘since the country was going through a transitional period which was to be

steered by three political groupings, the intention was that private members

24 SC 107/1225 [Chapter 29:15]

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would not be permitted to upset the inclusivity of decisions’26

The court however strenuously tried to point out that the right of a private

member to introduce a private bill was not entirely removed for the subsistence

of the GPA as the prohibition was only restricted to proposed legislation that

deals with government policies and programmes – a rather vague distinction

given the fact that any Bill enacted into law would necessitate government

enforcement. The point to be made here is would the Supreme Courts’

acceptance of the fact that the nation was going through a ‘transitional period

steered by three groupings’ which requires ‘inclusivity of decisions’ not have

been brought to bear on the minds of the very same judges who would sit as a

Constitutional Court and order the President to hold elections in spite of the

fact that the determination of an election date, if the meaning of the word

‘inclusivity of decisions’ is anything to go by, required at the very least the

input of the nations’ three groupings? This sudden about turn by our country’s

courts in taking this political decision certainly was unprecedented and equally

fascinating.

4.2 The Judgment

4.2.1 The Facts of the case

Applicant was Jealousy Mawarire, a registered voter in Zaka East

Parliamentary Constituency and also a member of the non – governmental

organisation, the Centre for Election Democracy in Southern Africa, based in

Harare. Applicant argued, under the old constitution, that the President of

Zimbabwe, first respondent, was constitutionally obligated to set the dates for

26 At p.9

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Zimbabwe’s next general election no later than the day after the 29 th of June

2013, when Parliament reaches the end of its constitutionally prescribed five

year term. Failure to fix a date for elections, applicant contended, before the

expiry of Parliament’s five year term would result in Zimbabwe being governed

unconstitutionally without a Parliament for up to four months. The failure to

do so, the applicant maintained, was a breach of his 1980 constitution rights.

4.2.2 Issues that fell for determination

The Constitutional Court was in essence asked to pronounce the

constitutionally required timing for the holding of a general election after the

dissolution of Parliament. Under the old 1980 Constitution, this was governed

by section 58(1), as read with sections 63(4) and 63(7) [‘the election provisions’].

For ease of reference the subsections will be quoted seriatim.

Section 58(1):

‘(1) A general election and elections for members of governing bodies of local

authorities shall be held on such day or days within a period not exceeding four

months after the issue of a proclamation dissolving Parliament under section

63(7) or, as the case may be, the dissolution of Parliament under section 63(4) as

the President may, by proclamation in the Gazette, fix.’

Section 63(4):

(4) Parliament, unless sooner dissolved, shall last for five years, which period

shall be deemed to commence on the day the person elected as President enters

office in terms of section 28(5) after an election referred to in section 28(3)(a), and

shall then stand dissolved:

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Provided that, where the period referred to in this subsection is extended under

subsection (5) or (6), Parliament, unless sooner dissolved, shall stand dissolved

on the expiration of that extended period.

Section 63(7):

‘Subject to the provisions of subsection (4), any prorogation or dissolution of

Parliament shall be by proclamation in the Gazette and, in the case of a

dissolution , shall take effect from the day preceding the day or first day, as the

case may be, fixed by proclamation in accordance with section 58(1) for the

holding of a general election.’

Chidyausiku CJ who penned the majority judgment summed up the issues well

that fell for determination at page 4 of the cyclostyled judgment as being:

Whether the applicant has locus standi to approach the Court in terms of

s 24(1) of the Constitution of Zimbabwe

When do harmonised general elections fall due in terms of the laws

of Zimbabwe? (my emphasis)

Whether the applicant had made out a case for the order sought.

4.3 Outcome

There were 3 judgments which focused primarily on the old constitution’s

electoral provisions. Chidyausiku CJ penned the majority judgment which

was concurred by Ziyambi, Garwe, Gowora, Hlatshwayo, Chiweshe , Guvava

JJA which having ruled that failure by the President to proclaim as soon as

possible dates for the holding of general elections when they fell due upon

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the dissolution of Parliament on 29 June 2013 was not only a violation of

his constitutional duty towards the applicant to exercise his functions as a

public officer in accordance with the law but also violated the applicant’s

rights as a voter and his legitimate expectation of protection of the law,

ordered the President to proclaim as soon as possible a date(s) for the

holding of general elections no later than 31 July 2013. There were 2

dissenting judgments from Malaba DCJ and Patel JA which essentially

came to the conclusion that the application would have been dismissed.

What follows is a detailed analysis of the respective judgments.

4.4 Majority Judgment

4.4.1 Analysis

The first issue Chidyausiku CJ writing for the majority grappled with was if

the applicant had locus standi to approach the court in terms of section

24(1) of the old Constitution which states:

‘If any person alleges that the Declaration of Rights has been, is being or is

likely to be contravened in relation to him ... then without prejudice to any

other action with respect to the same matter which is lawfully available, that

person ... may apply to the Supreme Court for redress.’

Applicant’s real or perceived violation of his Constitutional rights stemmed

from his belief that the first respondent (President’s) inaction in not

proclaiming the dates for the holding of general elections when the

expiration of Parliament was looming perilously close would lead to a state

where Zimbabwe was being run unconstitutionally without a Parliament. To

quote the applicant,

‘No interpretation whatsoever of the Constitution could ever validate the

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existence of a situation of the State without the legislative arm of Government.

Such an unprecedented situation would be a crippling negation of a

fundamental tenet of our democracy which is a sine qua non of our

constitutional order.’27

Applicant further buttressed his locus standi through reference to section

18(1) of the old Constitution which provides that every person is entitled to

the protection of the law. Subsection (1a) of that section provides crucially

that every public officer has a duty towards every person in Zimbabwe to

exercise his or her functions as a public officer in accordance with the law

and to observe and uphold the law. This section was inserted by way of

Amendment No. 19 to the 1980 Constitution and as the learned judge

notes28 it confers a right on any and every Zimbabwean who is affected by a

failure to uphold the law to approach the law in terms of section 24(1).

This amendment effectively shut the door on what has been termed ‘the pre

2009 requirements’ which required an applicant to actually establish a right

infringed or likely to be contravened under the bill of rights before having

recourse to section 24(1). It finds its best expression in United Parties v

Minister of Justice, Legal and Parliamentary Affairs and Ors29 where the

court stated:

‘Much turns on the meaning of the phrase ‘likely to be contravened’. Certainly,

it does not embrace any fanciful or remote prospect of the Declaration of

Rights being contravened. Nor does it refer to the Declaration of Rights being

liable to contravention ... Rather it means a reasonable probability of such a

contravention occurring.’30

27 At p.6 CCZ 1/1328 At p.629 1997 (2) ZLR 254 (S)30 At 257

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In what at best can be deemed a great deal of common sense, the learned

Chief Justice noted at page 8 of the cyclostyled judgment 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 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’ (my emphasis)

While this enlightened approach must be welcomed particularly as it widens

the pool of those who may have recourse to the ‘fountain of justice’, this was

a peculiar case which the majority in its decision, with respect, did not go

far enough in establishing if the applicant had established locus standi.

The majority correctly established that applicant was a registered voter in

Zaka East Parliamentary Constituency and also a member of the non –

governmental organisation, the Centre for Election Democracy in Southern

Africa, based in Harare. For the purposes of the application, in granting

locus standi to the applicant the Court treated the applicant as ‘any person’

as per section 24(1) of the former Constitution which is the relevant portion

of the constitutional right to bring cases before the court as opposed to

treating the applicant as ‘any voter’.

It is correct that both the former Constitution and the new Constitution

allows ‘any person’ with reasonable fear that their rights are about to be

infringed to approach the Court for relief. However, for the purposes of this

application it was with respect an incorrect approach the Court took in

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granting the applicant locus standi on the basis of being ‘any person’.

It is trite both by operation of law and practice that through the creation of

a voters roll kept by the Registrar General there was created in this country

a separate class of people known as ‘voters’. A voter may indeed fall under

the contemplation of the expression ‘any person’ but the reverse is true

because, quite matter of factly, not all persons are voters. Some are not

voters simply because they choose not to. What is evident however is while

‘any person’ can approach the Court to press their right to vote, by virtue of

the fact that only registered voters are entitled to vote in our country and

not simply ‘any person’, it follows that only a registered voter can bring an

application about the timing of elections. This is so because there needs to

be a nexus between the person suing and the right they seek to enforce

otherwise the Courts could quite easily find themselves inundated with

scores of name seekers suing about this right and that just for publicity or

glory seeking. There was need for the applicant to furnish the court with

evidence that showed that he was a registered voter, in the constituency he

claimed and also disclosed where and when he registered. This is because if

applicant were not a registered voter such a date would only be of academic

interest to him simply because having chosen not to participate in the

electoral process by not being a voter he has no interest in the date. The

absence of an enquiry into applicant's qualification as a voter in a case

whose relief was going to radically alter the constitutional trajectory of the

nation seems almost self - defeating.

While it is expected that the larger picture in this case really was about

what the Applicant claimed would be a violation of his right of protection of

the law in the event of the perpetuation of a ‘government’ operating for up to

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four months without its Legislative arm, it does not do away with this

problem alluded to above. This points to a clear exuberance on the part of

the Court to entertain this case whose ramifications the Court must have

certainly found appetising to say the least.

The second issue the learned Chief Justice grappled with concerned the

timing of when the harmonised general elections fell due in terms of the

laws of Zimbabwe following the dissolution of Parliament. This was in

essence the heart of the case.

Dissolution of Parliament can only take place in one of two ways namely:

Following a proclamation by the President

Through the effluxion of time when the five year term of Parliament

ends.

The case turned on the interpretation to be placed on the meaning of section

58(1) of the former Constitution. Ultimately, the learned Chief Justice guided

by his own version of constitutionalism and judicial respect for separation of

powers, could not lead himself to accept the plain reading of the section which

provided for government to exist without a Parliament for four months which in

his view to:

‘exist too long without a Parliament would be tantamount to shredding the

constitution and inviting a State of lawlessness and disorder’

Chidyausiku CJ advanced the position that there existed two ways of reading

the section 58(1) depending on what he termed ‘punctuation and emphasis’.

The learned Chief Justice came up with what he termed a Reading ‘A’ of section

58(1) which read:

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58 Elections

(1) A general election and elections for members of the governing bodies of local

authorities shall be held on:

i. such day or days within a period not exceeding four months after the issue of a

proclamation dissolving Parliament under section 63(7) or,

ii. as the case may be, the dissolution of Parliament under the section 63(4) as the

President may, by proclamation in the Gazette, fix’

The learned judge had a reading ‘B’ which was the manner in which the section

appeared as read from the Constitution. As such the section had been broken

up into two scenarios which both answered the question when elections are to

be held but with one putting emphasis on the preposition ‘on’ and the other on

‘after’. His insertion of the colon on after the words ‘held on’ in reading ‘A’

despite the fact that none existed in the original reading of the section was to

ostensibly clear up what he deemed as the ambiguous nature of the provision,

but in reality no ambiguity existed to start with.

It must be reiterated that Chidyausiku CJ was ultimately guided by what he

believed was an untenable situation that was created by a plain reading of the

section of government being able to exist for up to 4 months without a

Parliament. In his opinion it was a ‘mind boggling’ situation. To quote the

learned Chief Justice:

The expiry of life of Parliament would have silently passed without notice to all

concerned but with a dramatic effect of creating a deformed State without

Parliament for up to four months ... this would lead to an absurdity and glaring

anomalies’

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By insertion of the colon after ‘on’ in section 58(1) it radically altered the

meaning of the section and gave a new meaning to it that accorded with the

judge’s own conception of constitutionalism and separation of powers and gave

the Applicant the desired result. The meaning now simply was the President

must have set an election date within a period of 4 months before the

dissolution of Parliament and that an election should be held upon the

dissolution of Parliament. Yet the provision in question quite emphatically uses

the word ‘after’ and we must as such assume deliberately so. Such a reading,

in the learned judge’s opinion, cures the ‘mind boggling’ situation of

Government existing without a Parliament for 4 months which the learned

judge emphasized would be tantamount to ‘shredding the Constitution’, an

‘annihilation’ of the Constitution.

With respect this is not a sound argument. In this regard the forceful nature of

Malaba DCJ and Patel JA’s dissenting opinions are particularly instructive. To

start with, there clearly was no need to depart from the plain and ordinary

grammatical meaning of the words as they appear on section 58(1). Patel JA

puts it well where he says:

‘the clear words of a Constitution must be construed to override any doctrine

of constitutionalism predicated on essential values or core values. In

general, the principles governing the interpretation of a Constitution are basically

the same as those governing the interpretation of statutes. On must look to the

words actually used and deduce what they mean within the context in which

they appear ... If the words are clear and unambiguous, then no more is

necessary than to expound them in their natural and grammatical sense.’31 (my

emphasis)

31 At p.46

37 | P a g e

The learned Chief Justice made the fair comment that in interpreting the law,

the courts must follow an interpretation that does not lead to an absurdity.

However, by inserting a colon where non existed previously in section 58(1) he

unwittingly led the Court to an absurdity. If it was truly the intention of the

Legislature that the President is under a duty to issue a proclamation fixing the

day or days of the election within a period of four months before the dissolution

of Parliament as a matter of common sense the date of the election would be

known in advance as if it was fixed by legislation and there clearly would be no

point in the President issuing a proclamation and a date for an election that is

pre – determined.

The nature of section 58(1) vested in the President a discretionary power to fix

a day or days of the first election by a proclamation published in the official

Gazette. As such the very nature of such discretionary power, as Malaba DCJ

argued, gives the President the power to act on his own discretion or judgment

– there was no duty on the President to act in a specified at a specified time. It

follows as such that there was no legal duty on the President to fix 29 June

2013 or a day after as the date of the first elections. To quote Malaba DCJ:

‘The court cannot get involved in determining for the President the manner in

which he should exercise his discretion. It cannot tell the President which day or

days he should fix or that he was wrong in fixing a certain day. It is not the

function of a court of law to substitute its own wisdom and discretion for that of

the person to whose judgment a matter is entrusted by the law. Whilst a court can

review a public officer’s action for legality it cannot act as if it were the Executive.’

A finding that the President has a discretionary power under section 58(1)

which he has to exercise within the prescribed time limits would clearly have

avoided a contradictory order as evidenced by the majority.

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Furthermore, the aversion to a period of four months of government without a

Parliament seems to stem from an interpretation of the principle of separation

of powers which is part and parcel of a constitutional democracy. Chidyausiku

CJ found the prospect of rule by decree unpalatable. While one may agree with

the learned Chief Justice that it is far from desirable, it certainly is not

unconstitutional as it is explicitly provided for on plain reading of section 58(1).

As Matyszak opines:

‘This intrusion of the President into the legislative realm and ability to rule by

decree has long been part of our old Constitution and is carried over into the new.

The Chief Justice’s mind has, however, remained resolutely unboggled in the face

of these clearly egregious and undemocratic provisions. The old and new

constitution provide that the legislature consists of both Parliament and the

President. It is difficult to find a more blatant instance of statutory executive

intrusion into the legislative arm. Furthermore the ‘decrees’ referred to by the

Chief Justice are in fact Regulations issued in terms of the Presidential Powers

(Temporary Measures) Act ... It is specifically designed to do what the Chief

Justice now claims to find so abhorrent - to allow the President to make law in

the absence of Parliament’32

Ironically, in Kuchera & Ors v The Minister of Justice, Legal &

Parliamentary Affairs33, the case involved an urgent chamber application

challenging the alteration of an amendment made by the Legislature in 2007 in

which it was agreed to amend the Electoral Act34 to exclude police officers from

polling stations. The President had taken advantage of the dissolution of

Parliament and shortly before the March 2008 elections invoked the

32 Matyszak D ‘New Bottles: Old Wine – An Analysis of the Constitutional Court Judgment on Election Dates’ Research & Advocacy Unit (2013) 33 HH – 36 – 0834 [Chapter 2:13]

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Presidential Powers (Temporary Measures) Act35 to reinsert the provision

allowing for police officers at polling stations in spite of the fact that Parliament

had expressly called for the deletion of the provision just a few months earlier.

Guvava J (as she then was) defended this blatant example of rule by decree,

which is now in this Concourt judgment being deemed offensive, in glowing

terms stating:

‘It is trite that once regulations are published in terms of the Presidential Powers

Temporary Measures Act they have the same force and effect during their

lifespan, as legislation passed by an act of Parliament’36

Thus with respect with Chidyausiku CJ, it is not an absurdity that the country

should be run by decree without a Parliament as quite evidently our legislative

architecture is specifically designed to facilitate this possibility.

Constitutionally, Patel JA pinpoints the fact that the former Constitution seems

to contemplate this scenario where it is expressly provided in section 31E(2)

that:

‘No person shal hold office as Vice – President, Minister or Deputy Minister for

longer than three months unless he is a member of Parliament:

Provided that if during that period Parliament is dissolved, he may continue to

hold such office without being a member of Parliament until Parliament first meets

after the dissolution’

The insightful analysis of Malaba DCJ is faultless in this regard. Zimbabwe is

not the only constitutional democracy with a provision in a constitution

allowing for the period in which the affairs of a country can be run by the

Executive and Judiciary without Parliament following its dissolution by

35 [Chapter 10:20]36 At p.4

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operation of law at the end of its full term.

Article 64.3 of the Constitution of Bulgaria provides that the date for an

election shall fall within two months from expiry of the life of Parliament.

Section 55(4) of the Malaysian Constitution provides that such a date shall fall

within sixty days from the dissolution of Parliament. Here in Africa in the

Kenyan Constitution section 9 of the Sixth Schedule provided that the first

elections would be held sixty days after the dissolution of Parliament. Even in

countries such as Canada where the election date is set by the Legislature the

situation Applicant so valiantly criticises could not be avoided. That

Constitution provides that elections are to be held on 19 October at the end of

four years of Parliament. The dissolution of Parliament by proclamation

prematurely terminated the life of Parliament. As a result an election that 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 thus is clear that the principle that states that there is period after the

automatic dissolution of Parliament when the affairs of the country can be run

by the Executive and Judiciary is well recognised. With that finding the

Applicant’s case falls away. Chinyoka sums it up well when he states:

‘Why is it untenable for elections to be held with good preparation after the

safeguards in the new constitution have been implemented under the supervision

of the both the Executive and Judicial arms of ‘Government’ over a four month

period but it 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

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Parliament.37’

To borrow the learned Chief Justice’s own words, it certainly is mind boggling!

4.5 The Minority Judgments

4.5.1 Analysis

Over and above what has already been alluded to above, Justices Malaba and

Patel found that the elections provisions must be called within four months

after the dissolution of Parliament. From an interpretation standpoint they

simply gave the words their plain and ordinary meaning. Crucially the

minority’s reasoning was consistent with the provisions of the new Constitution

of Zimbabwe that permit government to function without a sitting Parliament

for up to 90 days after the dissolution of Parliament.

Section 158 of the New Constitution governing the timing of elections was

suspended, thus in essence meaning the judges of the Court were seized with

considering and applying the timing of the provisions of the former

Constitution. This is not to say the new Constitution was irrelevant insofar as

the general election that formed the object of the dispute was concerned. It was

very much relevant as the ‘first elections’ mentioned in the new Constitution

were the general elections that formed the basis of the application. Malaba DCJ

is the only judge who directly addressed the provisions of the New Constitution

stating at page 38 of the cyclostyled judgment:

‘In suspending the coming into operation of s 158 the framers of the new

Constitution were aware of the provisions of s 58(1) of the former Constitution.

37 Chinyoka T ‘My dissent in Jealousy Mawarire vs Robert Mugabe : Tino Chinyoka http://nehandaradio.com/2013/06/07/my-dissent-in-jealousy-mawarire-vs-robert-mugabe-tino-chinyoka/

42 | P a g e



They were aware of the clear conflict between the position provided for under s

58(1) and that enacted by s 158(1)(a) of the new Constitution. Section 158(1)(a)

provides for the fixing of the date of elections within the specified period before

the date of an automatic dissolution of Parliament. Section 58(1) to the contrary

provides for the fixing of the date of the election within the prescribed period after

the date of automatic dissolution of Parliament’

The Sixth Schedule to the new Constitution is the transitional section

suspending some sections of the Constitution and bringing some into force on

the publication day. Section 1 of Part 1 of the Sixth Schedule provided that

‘first elections’ be held in terms of the new Constitution. Section 8 Part 3 of the

Sixth Schedule went further to state that the ‘first elections’ must be conducted

in terms of an Electoral Law in conformity with this Constitution. Malaba DCJ

aptly notes:

‘The first elections which are due to be held under the new Constitution are

bound to test the readiness of Zimbabweans to embrace the change embodied in

the New Constitution ... Choosing the precise date to hold the first elections

is therefore a matter of utmost importance to be handled with greatest

care’ (my emphasis)

This seems a more plausible notion of constitutionalism as opposed to that

displayed by Chidyausiku CJ in that in deciding on a date for the elections the

Court and the Executive had to ensure the ‘democratic quality of the first

elections’ which was a constitutional imperative. A rushed date, as reflected in

the majority judgment, would only serve to seriously dilute the quality of the

first elections.

Crucially though, the Sixth Schedule does not set a specific date for the

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elections. Wallis is spot on when he states:

‘A plain reading of the Sixth Schedule appears to condition ‘first elections’ on the

completions of identifiable processes (which have timing requirements of their

own) and not to equate the ‘first elections’ with elections generally and their

timing ... A more constitutionally appropriate approach is that elections should be

held when Zimbabwe has completed a host of constitutionally required tasks.’38

The majority once it adopted the position that the setting of election dates fell

four months before automatic dissolution of Parliament cannot then have

turned around and given the President an extra month after the automatic

dissolution of Parliament to set the polls dates based on what it considered to

be the ‘exigencies of the matter’. To borrow the learned Deputy Chief Justice’s

words it certainly defied logic as it was a conclusion stating the President had

broken the supreme law of the land and yet at the same time authorising him

to continue acting unlawfully, a dangerous principle that had no basis in law.

4.6 Conclusion

It is manifestly clear that the majority made a political decision in ordering the

President as head of the Executive to set an election date of 31st of July 2013

which was at complete variance with the clear and express provisions of the

law. The Court was sitting as a Constitutional Court seized with being the

vanguards of the supreme law of the land. This task simply involves

interpreting the law and leaving it at that. It is difficult to believe the learned

justices that proferred the majority opinion sufficiently engaged with the new

38 Wallis A ‘Zimbabwe’s Election Ruling: A Constitutional Conundrum’ Southern Africa Litigation Centre (2013)

www.southernafricalitigationcentre.org/2013/06/12/zimbabwes-election-ruling-a-constitutional-conundrum/

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Constitution and fully comprehended the plethora of legislative provisions that

made the July 31 deadline an impossibility. Having strayed outside the

interpretive role of the Court into making laws and executing them, which was

clear judicial usurpation of powers vested in other arms of government, it is

shocking that the Court decided to pluck a date that would effectively curtail

and cancel out the transitional process and safeguards put in place by the new

Constitution, a false start to a new Constitutional dispensation that required a

strong Constitutional Court as its guardian.

CHAPTER FIVE

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AFTERMATH OF THE CONSTITUTIONAL COURT JUDGMENT

‘This is a direct consequence of negotiating a new Constitution which

did not provide for a fresh and reconstructed court to adjudicate upon

constitutional matters, but rather the current Supreme Court operating,

under a different name with a few more judges’39

Derek Matyszak

5.1 Introduction

A clear aftermath of the ConCourt judgment, where the Court took an

unprecedented stance of fixing an election date and ordering the Executive to

comply with it which in essence decided the political fate of the entire nation,

was the advent of judicialisation of politics in Zimbabwe. Where previously the

courts may have taken the stance that politics is a game for politicians only viz.

Legislators and members of the Executive, it is clear that our courts are now

willing to directly confront and resolve political questions, as reflected in this

judgment, that trouble society. What follows is an overview of some cases that

have come before the ConCourt in the wake of the Mawarire judgment coupled

with a jurisidictional comparison of some countries that have adopted the

practice in question.

5.2 Significance of court approach in Mawarire case

It does not follow that the only course of action open to the Court having found

that the applicant was entitled to some form of relief was to fix an election date

as sought by the applicant. The fact that the Court consciously decided to

make the political decision to set an election date gives credence to the fact that

judicialisation of politics has taken centre stage. Kapurura40 suggested a viable

39 Matyszak D ‘New Bottles: Old Wine – An Analysis of the Constitutional Court Judgment on Election Dates’ Research & Advocacy Unit (2013)40 Kapurura T ‘Was The Recent Election Deadline Legislated From The Bench?’

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alternative with which this writer is in total agreement. Such course would

entail after hearing arguments from both sides, not affording the case a

judgment in black and white. Instead there would be a reserved judgment

accompanied by a recommendation to the Executive to take over and review the

issue as conflict of roles, as far as separation of powers is concerned, would be

cited. The Executive would then emerge with a pragmatic solution, which given

the fact that the government was an inclusive one comprised of three political

groupings, may very well have led to a polling date being fixed that was truly

representative of the wishes of the populace, not an court expedited deadline

where certain conditions for a free and fair election could not possibly be met in

such a limited timeframe, such as an updated voters roll. Chiweshe JP’s

remarks in Kufa & Another v The President of the Republic of Zimbabwe

N.O. & Ors41 are particularly instructive where he reasoned thus:

‘I am of the view that once a political matter is inserted into the Constitution, it

becomes justiciable. However, any remedy that the court may impose must

take into account any adverse implications of such remedy on the

political order of the day’.42 (my emphasis)

In this case the applicant sought an order of the court declaring the

appointment of an additional ten ministers from the figure of 31 Ministers

provided for in terms of Article 20.1.6(5) of Schedule 8 to the Constitution by

the President null and void. The learned judge ruled that in as much as that

was anomalous, it was not an anomaly that the legislature itself could not

address one way or the other given its wide powers. It cannot be reasonably

said that the Constitutional Court sufficiently took into account the adverse

http://www.zimeye.org/?p=82710

41 HH – 86 – 11 42 At p.5

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ramifications of its decision on the political order of the day. It makes it even

more bizarre why the honourable court at the very least did not seek written

representations from the Executive having taken the political decision to

abrogate unto itself the political decision to set the harmonised general election

date. Be that as it may, the political decision made by the Court points to

judicialisation of politics.

5.3 Overview of select cases after the Mawarire Judgment

Given the fact that the Mawarire judgment gave a strict deadline of July 31 it

was perhaps inevitable that there would be a series of court applications that

alleged the infringement of rights created by the new Constitution.

Interestingly, the Constitutional Court was unfazed by the applications sticking

to its political decision even in the face of a Southern Africa Development

Community Extraordinary Heads of State Communique on the 15 th of June

2013 that agreed on the need for the Government of Zimbabwe to engage the

Constitutional Court to seek more time beyond the 31 July 2013 deadline for

the holding of Harmonised Elections43, presumably to allow for the much

clamoured for ‘reforms’ that would necessitate a free and fair election. It thus is

noteworthy that even in the face of overwhelming political pressure, the Court

was hell bent on determining the political fate of the nation at the stroke of a

pen.

(1) Minister of Justice & Legal Affairs v Jealousy Mawarire & Ors

The Justice Minister submitted an application on the 18th of June 2013 to the

43 Veritas ‘Pre – Referendum and Pre – Election Challenges Dismissed by the Courts’

http://www.thezimbabwean.co/news/zimbabwe/68169/pre-referendum-and-pre-election.html

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Constitutional Court (‘ConCourt’) seeking a 14 – day extension of the July 31

deadline that had been set by the ConCourt in its Mawarire decision on the 31st

of May. The Minister unsurprisingly pointed that he was only applying for the

extension because the SADC Summit had said he should do so, but re –

affirmed the stance taken by the President towards the Mawarire decision that

he saw no legal difficulties or impediments in complying with the judgment, in

essence making a half hearted application that was doomed to fail.

The Prime Minister filed opposing papers stating that the SADC Summit only

mandated a joint GPA principals’ application. Professor Ncube also made a

counter application setting out a detailed justification for an extension of an

election date.

(2) Nixon Nyikadzino v The President, the Prime Minister & Ors

Filed by a civil society activist on 12th June 2013, the application asked for an

extension of the election date arguing that the holding of an election on the 31st

of July 2013 violated a number of constitutional rights under the new

Constitution that included inter alia, political rights, right to administrative

justice, right to equal protection and benefit of the law as a voter and citizen of

Zimbabwe. He averred a compelling argument that it would not be possible to

implement essential pre – election implementation of other rights of the new

Constitution such as section 52(a) freedom from violence, section 58 freedom of

assembly and association, section 62 access to information and section 208

security sector alignment. The applicant also argued that it was not objectively

possible to comply with the Court order because in line with the Constitution,

elections could only be held in accordance with an Act of Parliament which

must be in compliance with the Constitution. The Presidential Powers

(Temporary Measures) (Amendment of Electoral Act) Regulations, 2013 enacted

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under the Presidential Powers (Temporary Measures) Act did not qualify as an

Act.

(3) Maria Phiri v The President & Ors

Lodged on the 7th of June, applicant had under the former Constitution been

classified as an ‘alien’ but was confirmed as a citizen under the new

Constitution. After undergoing a lengthy process to obtain a new ‘Citizen’ ID

document in order to register as a voter, applicant applied to have the election

date postponed arguing that the timetable fixed for the election did not allow

for persons in her position to exercise their constitutional right to vote which in

essence meant elections under the subsisting timetable would not be in

accordance with the Constitution.

(4) Morgan Tsvangirai v The President & Ors

The Prime Minister lodged on the 24th of June a separate application that:

• Challenged the constitutional validity of the proclamation of elections by

31st July given the legal impossibility of the timeframes

• Unconstitutional use of the Presidential Powers (Temporary Measures)

Act to amend the Electoral Law through Statutory Instrument 85/2013

• Unconstitutionality of the Presidential Powers (Temporary Measures) Act

which applicant averred was inconsistent with the principle of

separation of powers given its delegation of sweeping legislative powers

which were equivalent with Parliament itself.

Outcome

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On the 4th of July all the above applications were heard and dismissed by

the Constitutional Court in their totality, confirming ‘for the avoidance of

doubt’ 31 July as the poll date in compliance with the Court’s order of May

31st in the Mawarire case and in accordance with the President’s

proclamation under SI 86/2013. An opportunity to right an irresponsible

political decision was missed by the Court, that instead opted to firmly stick

to its original decision.

The New Constitution interestingly has provisions that contemplate a

political role being exercised judicially by the courts. Section 93 states that

an aggrieved candidate may challenge the validity of the election of a

President or Vice - President by lodging a petition or application before the

Constitutional Court within 7 days of the publication of the results. This

provision almost had occasion to be tested in Tsvangirai v Mugabe &

Others wherein the applicant was challenging the results of the Presidential

Election on July 31 but withdrew the petition on the eve of the hearing.

Section 143(3) empowers the President to dissolve Parliament where it

unreasonably fails to pass an Appropriation Bill. Such decision is subject to

review by the Constitutional Court within 7 days of the dissolution.

It is clear from what has been stated in the foregoing that judicialisation of

politics has taken root in our jurisdiction. What follows is an analysis of this

practice of judicialisation of politics in other jurisdictions namely South

Africa, Canada and the United States of America, the point that is sought to

be made being that in as much as it has been welcomed in some

jurisdictions, it has been discouraged in some.

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4.4 COMPARATIVE ANALYSIS OF JUDICIALISATION OF POLITICS

IN OTHER JURISDICTIONS

4.4.1 South Africa

The South African courts have been in recent times gravitating towards the

settling of more and more cases that are of an inherently political nature.

This is not to suggest there has been judicialisation of politics in South

Africa. Indeed, the courts there have issued the warning that ultimately,

political issues must be handled at a political level – the role of the courts

where such issues arise is merely to police the parties within the four

corners of the constitutional framework. To a paint a clearer picture is a

look at a few high profile political cases that have come before, and been

subsequently determined, by the South African courts in recent times.

(1) Mazibuko, Leader of the Opposition in the National Assembly v

Sisulu, MP Speaker for the National Assembly44

In casu, the applicant who was the leader of the Opposition in the National

Assembly of South Africa sought an order, on an urgent basis, directing the

Speaker of the House of Assembly (first respondent) to take whatever steps

necessary to ensure that a motion of no confidence in the President of the

Republic of South Africa which was dated 8 November 2012 was debated

and scheduled for a vote on or before the 22nd of November 2012.

Davis J held that the Rules of the National Assembly did not empower the

Speaker to do so and as such it was not within the purview of the Court to

order the Speaker to do something the Rules of the National Assembly did

not entitle him to do so. The main problem that confronted the Court was

44 2013(4) SA 243 (WCC)

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that the Rules of the National Assembly did not provide for a deadlock

breaking mechanism to ensure that a vote of no confidence was debated

urgently – even where the majority simply wished to block the debate or

where it wished to delay the debate to a future date of its liking. The High

Court could not re – write the Rules of the National Assembly, and in any

event was not prepared to, as the power to determine the processes to be

followed by the National Assembly fell within the constitutional domain of

the National Assembly. The learned judge’s remarks at page 32 of the

cyclostyled judgment are particularly instructive where he says:

‘Courts do not run the country, nor were they intended to govern the country.

Courts exist to police the constitutional boundaries, as I have sketched them.

Where the constitutional boundaries are breached and transgressed, courts

have a clear and express role. And must then act without fear or favour. There

is a danger in South Africa however of the politicisation of the judiciary,

drawing the judiciary into every and all political disputes, as if there is no

other forum to deal with a political impasse relating to policy, or disputes

which clearly carry polycentric consequences beyond the scope of

adjudication. In the context of this dispute, judges cannot be expected to

dictate to Parliament when and how they should arrange its precise order of

business matters. What courts can do, however, is to say to Parliament: you

must operate within a constitutionally compatible framework.’

This stance of policing the constitutional boundaries and re – affirming the

standpoint that courts should not be used to settle political disputes was

also underscored by the Constitutional Court of South Africa when the

matter was heard on appeal where Jafta J in a minority judgment noted:

‘Political issues must be resolved at a political level. Our courts should not be

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drawn into political disputes, the resolution of which falls appropriately within

the domain of other fora established in terms of the Constitution.’45

(2) Democratic Alliance v President of the Republic of South Africa and

Others46

In this landmark case, the Supreme Court of Appeal (‘SCA’) unanimously set

aside President Zuma’s appointment of Mr Menzi Simelane as the National

Director of Public Prosecutions (‘NDPP’) on the 25th November 2009 on the

basis of being inconsistent with the Constitution and invalid. The Court found

that the President had acted irrationally and unlawfully when he appointed

Simelane as NDPP, acting in breach of the express provisions of the

Constitution and section 9(1)(b) of the National Prosecuting Authority Act47

The appellants had contended that the appointment of Simelane was contrary

to the requirements of section 9(1)(b) of the Act as he was not a ‘fit and proper

person’ within the contemplation of that subsection. In any event, the

appellants contended, the President had not sufficiently interrogated

Simelane’s fitness for office in the manner contemplated by the subsection.

Furthermore, Simelane had demonstrated a history of lack of integrity, which

given the fact that section 179(4) of the Constitution required the NPA to

execute its duties without fear or favour, was not an obligation that could be

successfully discharged through Simelane.

The SCA in upholding the appeal pointed to the fundamental standpoint that

the legislative and executive arms of government are bound by legal prescripts

which placed a premium on accountability, responsiveness and openness. As

45 Mazibuko, MP, Leader of the Opposition in the National Assembly v Sisulu, MP, Speaker of the National Assembly & Anor CCT 115/12 at 3946 2012(1) SA 417 (SCA)47 Act 32 of 1998

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such to ensure a functional, accountable and constitutional democracy there

had to be limits placed on the exercise of power. Institutions and office bearers,

such as the President, must work within the law and be accountable. To

borrow the Court’s glowing words:

‘ours is a government of laws and not of men and women.’

Under such a state of affairs the President and other members of the Executive

must work within the law.

Comment

What can be gleaned from the cases above is the position of the South African

courts insofar as judicialisation of politics is concerned is manifestly clear – the

courts are not the appropriate forum to deal with political disputes. The role of

the Court remains to interpret the law and invalidate conduct, be it

perpetuated by the Executive or any other individual,that is at variance with

the express provisions of the law. As aptly underscored by former

Constitutional Court of South Africa judge Kate O’Regan when delivering the

annual Helen Suzman Memorial Lecture reflecting on the role and work of the

Constitutional Court:

‘in fulfilling its constitutional mandate, the role of the Courts is not to thwart or

frustrate the democratic arms of government , but it is rather to hold them

accountable for the manner in which they exercise public power.’48

48 Helen Suzman Foundation ‘The Implications of the SCA’s Simelane judgment’ (2011) http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71656?oid=270137&sn=Detail&pid=71656

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http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71656?oid=270137&sn=Detail&pid=71656


4.4.2 Canada

There has been an expansion of the role of the courts in Canada from merely

making decisions about rights issues to also encompass decisions affecting

politics. Such political questions have been framed as constitutional issues so

that they can be resolved by the courts and not politicians49

An apt instance of this has been the Quebec Secession Reference50, a matter

in which the Supreme Court of Canada was asked by the Governor in Council

of Canada (which is in essence the Cabinet of Canada) to give an advisory

opinion on the legality of the proposed secession of the province of Quebec from

the Canadian Federation under both Canadian and international law. In a

referendum held in 1995 in Quebec by a 50.6% to 49.4% vote split the Quebec

secessionist movement had lost in its attempt to allow for Quebec to secede

from the Canadian Federation thus the courts became the only route through

which the secession issue could be further explored. Compelling submissions

were made by the parties with the federal government arguing that Quebec

could only secede through a constitutional amendment while an amicus curiae

pointed out that the reference was invalid as the question the Court was being

asked to determine was a political one that was outside the authority of the

Court.

In arriving at its judgment the Court adopted a middle of the road approach,

pointing out that unilateral secession was not legal but if a referendum was

held to determine whether Quebec could secede there could be no basis on the

part of the Canadian Federation to deny the government of Quebec the right to

49 Hunt, S ‘The Judicialisation of Politics in Canada and the United States’ (2013) Bowling Green State University50 [1998] 2 S.C.R. 217

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secede. This judgment prompted the Canadian Parliament to pass the Clarity

Act of 2000 which expressly stated that for any province to leave Canada it

must have clear referendum language for independence and must have a super

– majority viz. More than 50%+1.

Quebec is Canada’s second largest province – the issue of its proposed

secession as enunciated by those in support of secession in that province was a

hotly disputed political issue. Thus the stance by the Canadian Courts to

transform Quebec’s political status into a judicial question in which they

became the key deciding body points to a clear judicialisation of politics in that

nation.

4.4.3 United States of America

The United States has experienced judicialisation of politics to a large scale. As

aptly noted by Alexis de Tocqueville:

‘scarcely any political question arises in the United States that is not resolved,

sooner or later, into a judicial question.’51

This is largely because American politics has by and large been Constitution

centred and the Constitution creates three separate and equal branches of

government. Given the fact that it is a federal constitutional system it is

perhaps inevitable that the Supreme Court of the United States of America is

the mediator in many of the controversial political issues that arise between the

state and national government. In the famous case of Marbury v Madison52 the

51 Banting K, Hoberg G, Simeon R ‘Degrees of Freedom: Canada and the United States in a Changing World (1997) at p.31352 5 U.S. 137 (1803)

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Court made a determination on the powers of the federal government. The

Court held that the Supreme Court has the authority to review the acts of

Congress, the legislative arm of government and determine whether they are

unconstitutional.

Such a standpoint has resulted in the court having a proud history of

determining constitutional limits for the legislature. In Planned Parenthood v

Casey53 the court refused to permit certain legislative restrictions on access to

abortions. This evidently results in legislation being made in the courts and is

the main reason why appointments to the Supreme Court have become

partisan and political issues.

Where the Legislature has refrained from making law, the Supreme Court has

stepped in. Famous instances of this have included the extension of

constitutional protections to the those accused of crimes such as in Miranda v

Arizona54, the inclusion of right to abortion by blocking government regulations

of abortion in Roe v Wade55 and even establishing busing plans in school

districts such as in Swann v Charlotte – Meckelnburg Board of Education56.

In cases such as these the courts developed policies that clearly had far

reaching and political ramifications, which is a clear judicialisation of politics.

The Supreme Court exercises what is known as a command function in which

the court can instruct the government on what to do. Silverstein puts it well

when he states that it means,

‘policy advocates might be able to achieve their goals by relying upon judicial

arguments and orders rather than working thorough the ordinary political process

53 505 U.S. 833 (1992)54 384 U.S. 436 (1966)55 410 U.S. 113 (1973)56 402 U.S. 1 (1971)

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of bargaining, persuasion, negotiation and elections.’57

An apt instance of this is in the case of Monroe v Pape58. The court held that

citizens could bring the Civil Rights Act of 1871 ‘section 1983 lawsuits’ against

state officials. The said section 1983 imposes civil liability on any person who

deprives another of constitutional rights. This decision became a useful avenue

through which prison inmates could challenge the constitutionality of their

time in prison and led to prison condition reform.

The Supreme Court of the United States of America has also played a key role

in determining the political future of its leaders by being the decision maker in

national elections as was so clearly illustrated in the landmark case of Bush v

Gore59 which was a case that related to a dispute over the American

presidency. By a narrow margin of 5 – 4 the court in essence picked who was to

be the next President of the United States of America. Inevitably in its

aftermath the Supreme Court was subjected to harsh criticism from media and

academia alike for not only lightly spending its political capital but seemingly

‘over drafting’ on it.60 The point that is sought to be made is this was by far the

most prominent example of judicialisation of politics that, as has been

illustrated, has taken firm root in the United States of America.

5.5 Conclusion

In conclusion, it is evident that there has been a clear advent of judicialisation

of politics in our jurisdiction that has seen our courts adopt a much more pro

57 Silverstein G ‘Law’s Allure in American Politics and Policy: What It Is, What It Is Not, and What It Might Yet Be’ Law & Social Inquiry 35, No. 4 at 1079 (2010)58 365 U.S. 167 (1961)59 531 U.S. 98 (2000)60 See Chemerinsky E ‘Bush v Gore was not Justiciable’ 76 Notre Dame Law Review 1093 (2000); Pildes R ‘The Supreme Court, 2003 Term – Forward: The Constitutionalisation of Democratic Politics’ 118 Harvard Law Review 29 (2004)

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active role in seeking to settle the pressing political questions befuddling our

nation. The comparative analysis that followed highlighted that while in

countries like the United States of America and Canada there has been real

zeal in adopting the practice of judicialisation of politics, closer to home in

jurisdictions such as South Africa the courts have adopted a more conservative

approach of purely interpreting the law and encouraging would be litigants not

to bring political disputes to the courtroom.

CHAPTER SIX

CONCLUSION AND RECOMMENDATIONS

6.1 Introduction

What can be gleaned from what has been discussed in the foregoing is the fact

that the practice of judicialisation of politics is growing in popularity and may

indeed reach a point where it is generally accepted by most jurisdictions. What

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will be underscored however in this chapter that will proffer some

recommendations and conclude this study is the fact that the very process of

political judicialisation should be contextualised. While there might very well be

justification for judicial intervention in the political affairs of some countries,

this may not be so in some others.

6.2 Recommendations

To start with, judicialisation of politics has traditionally found its best

expression in thriving democracies where the very notion of politics is that of

democratic politics and the very notion of court involvement in politics is, as

Pildes61 so glowingly put it, ‘judicial oversight of democratic politics’. So to start

with, a judiciary that takes it upon itself to adopt the practice of judicialisation

of politics must, it is presumed, be strong and independent. Ugochukwu62

succinctly encapsulates this notion stating thus:

‘A strong, independent judiciary operating with substantial institutional legitimacy

may be suited for such political exertions. On the other hand, a dependent and

weak judiciary, struggling with its image, risks losing what little it has by taking

political cases’ (my emphasis)63

The later part of the notion alluded to above, ‘a dependant and weak judiciary’

‘struggling with its image’ is precisely the position our judiciary finds itself in.

While there was nothing unbecoming, however startling and unprecedented it

was, in the Constitutional Court taking an overtly political stance of setting a

general election date and ordering the Executive to comply with it thus tacitly

adopting the practice of judicialisation of politics, this is not a role our courts

61 Pildes R Ibid.62 Ugochukwu B ‘The Pathology of Judicialisation: Politics, Corruption and the Courts in Nigeria’ The Law and Development Review: Vol. 4: No. 3, Article 463 http://www.osgoode.yorku.ca/sites/default/files/research/Ugochukwu%20-%20LDR%20Article.pdf

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can perform properly and it is submitted any further involvement by our courts

in deciding political questions should not be encouraged.

This is so when one considers the ilk of judges that currently sit on our

superior courts. As was alluded to in the third chapter, there has been a

general tendency by our Courts to lend its process to the service of the State in

high profile cases as opposed to being an impartial arbiter. Simply put, our

judiciary invariably sides with the Executive where high profile cases are

concerned. This likely has its roots in the fact that our Constitution creates an

all powerful Executive President that thus leaves an independent judiciary

existing solely at his whim which when one looks at recent trends, is clearly

the case. This is made worse by the fact that in Zimbabwe, like some other

nations, the judicial budget is controlled by the Executive. As our Chief Justice

Godfrey Chidyausiku bemoaned at a certain forum:

‘I am constrained to mention one threat which has survived the test of time –

traversing both the past and modern. This is none other the control of the judicial

budget by the executive ... For he who pays the piper controls the tune. I shall say

no more!’64

Such a perceived backdrop makes fatal any perceived attempts by our judiciary

to adopt the practice of judicialisation of politics because any politically

sensitive matters that come before the courts, more so the high profile ones,

will have the the Executive as an interested party which invariably will set the

judiciary and executive on a collision course that will inevitably leave the

executive as the winner. The reality is we have a weak and dependant judiciary

that is struggling with an image of consistently pandering to the wishes of the

64 Presentation by the Hon. G.G. Chidyausiku, Chief Justice of Zimbabwe ‘Modern Challenges To the Independence of the Judiciary’ Conference and Annual General Meeting of the Southern African Chief Justices’ Forum, Johannesburg, South Africa: 13 – 14 August 2010

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executive in high profile cases. Such a state of affairs leaves our judiciary

totally unsuited to perform the practice of judicialisation of politics and any

attempts to venture further with this in future could further erode the public

confidence in our courts.

This state of affairs is exacerbated by the sections 93 and 143 of the New

Constitution that seek to give a political role to the Constitutional Court.

Section 93 that deals with Presidential Election Petition expects the court to

deal with the petition on the basis of the papers filed without explicit reference

to hearing of viva voce evidence and within a rather stringent deadline of 14

days. This makes it doubtful how the court can then be expected to make a

politically responsible decision.

Even when one closely considers the Mawarire judgment – the most prominent

example of judicialisation of politics to date, it at first glance looks like a sign of

judicial independence, but when one uses the ‘inner eye of the mind’ it is far

from it. The President, who is the head of the executive, even before the case

was heard had repeatedly expressed his desire to hold elections early after the

passage into law of the new Constitution on the 22nd of May 2013. The fact that

the Constitutional Court ordered for early elections to be held against the

express provisions of the Constitution in what the Deputy Chief Justice

rightfully pointed out defied logic, fit very well with the wishes of the President,

who unsurprisingly agreed wholeheartedly with the court order. This clearly

was, albeit veiled, in sticking with the trend by our courts to abide by the

wishes of the executive in high profile cases. One cannot, however attractive it

may sound, encourage adoption of judicialisation of politics as long as our

judiciary is in its present state.

This is not to imply that our courts are dysfunctional and can no longer serve

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any purpose. The real challenge is in high profile cases our courts will

invariably side with the executive due to the circumstances alluded to above. In

the English case of Jayesh Shah & Another v HSBC Private Bank Limited65

HSBC Bank sought security for costs for a claim by Zimbabwean businessman

Jayesh Shah of US$300 million in damages. The bank had argued that if

litigation went ahead it was not going to be able to recover its costs against

Shah, arguing that Zimbabwe, ‘did not have a functional legal system’ and that,

‘the judges were beholden to the Executive’ and as such this would cause

problems in enforcing the judgment in Zimbabwe. Davis J handing down the

judgment of the Court of Appeal of England and Wales held that Zimbabwe had

a functional legal system and no contrary evidence had been placed by any

advocate practising in Zimbabwe to support the defendant Bank’s negative view

of the country’s legal processes. Commenting on the judgment, Advocate

Thabani Mpofu noted,

‘It’s a disciplined judgment which refuses to borrow from political rhetoric. It is a

judgment steeped firmly in legal principle and generates, one might say, a lot of

good will on an international plane in so far as our judicial processes are

concerned’66

The point that is to be made here is that it is not in dispute that our judiciary

is functional. The challenge is our judiciary is not sufficiently equipped to play

a political role rendering fatal any moves towards judicialisation of politics.

Thus it is recommended in light of judicialisation of politics taking root in our

jurisdiction that:

65 Unpublished, see Munyoro F ‘UK Gives Zim judicial system thumbs up’ http://www.sundaymail.co.zw/index.php?option=com_content&view=article&id=8543:uk-gives-zim-judicial-system-thumbs-up&catid=37:top-stories&Itemid=130#.UzKaUpsoTFg66 http://www.sundaymail.co.zw/index.php?option=com_content&view=article&id=8543:uk-gives-zim-judicial-system-thumbs-up&catid=37:top-stories&Itemid=130#.UzKaUpsoTFg

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http://www.sundaymail.co.zw/index.php?option=com_content&view=article&id=8543:uk-gives-zim-judicial-system-thumbs-up&catid=37:top-stories&Itemid=130#.UzKaUpsoTFg




• When politics fails the last, (and often only) avenue left to would be

affected parties invariably is the courts. This should not be an excuse to

inundate our courts with highly politically sensitive political cases it is ill

equipped to handle impartially. As a first step our courts should

categorically state that the judiciary is not the appropriate forum to

settle political disputes.

• Where, inevitably, a matter ‘falls through the cracks’ and the court finds

itself seized with a highly politically sensitive matter that ideally should

be handled by the Executive, as opposed to merely deferring the matter

to the Executive, which would prejudice the litigants, the court must

engage in what can be termed communicative dialogue with the

Executive branch of government. This is whereby the court elicits the

views of the Executive on the matter in order to produce an optimum

result that is just and equitable. For example as was already stated

earlier in the Mawarire judgment the Constitutional Court could have

issued a reserved judgment accompanied by a recommendation to the

Executive to take over and review the issue as conflict of roles, as far as

separation of powers is concerned, would be cited as a reason for the

Court’s reluctance to rule on the matter. This is an instance of the

communicative dialogue that is being referred to.

• Sections 93 and 143 of the New Constitution need an urgent revisit. The

Constitutional Court should be given at least 30 days to determine the

petitions, on the basis of viva voce evidence, not only on the strength of

the papers filed. This affords the Court an opportunity to make a

politically responsible decision.

6.3 FINAL CONCLUSION

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An oft quoted, but unspoken rule in the legal field is law follows politics.

Perhaps this best explains why the very practice of judicialisation of politics

has been so warmly received by some nations. It was the object of this study to

elucidate on this practice that found itself on our very doorstep, whether

intended or unintended, when our newly constituted Constitutional Court

handed down its first, and indeed landmark judgment of Mawarire v Robert

Mugabe N.O. & Ors and even found expression in some provisions of the New

Constitution. As was illustrated, the majority judgment of the court was not

well reasoned and it is perhaps not only unfortunate that it was from such an

overt act by the court that the whole political trajectory of the nation was to be

changed, but it comes as no suprise that, in the final analysis, judicialisation of

politics is a practice which we cannot, in our jurisdiction, and for the reasons

outlined in the foregoing, embrace at this point in time.

END.

BIBLIOGRAPHY

Articles

• Banting K, Hoberg G, Simeon R , ‘Degrees of Freedom: Canada and the United States in a Changing World’ (1997)

• Chemerinsky E, ‘Bush v Gore was not Justiciable’ 76 Notre Dame Law

Review 1093 (2000); Pildes R ‘The Supreme Court, 2003 Term –

Forward: The Constitutionalisation of Democratic Politics’ 118

Harvard Law

• Chikuhwa J W, ‘A Crisis of Governance: Zimbabwe’ Algora Publishing (2004)

66 | P a g e

• Chinyoka T, ‘My dissent in Jealousy Mawarire vs Robert Mugabe’

available http://nehandaradio.com/2013/06/07/my-dissent-in-

jealousy-mawarire-vs-robert-mugabe-tino-chinyoka/

• Hirschl. R, ‘Judicialization of Politics’ The Oxford Handbook of Law and Politics. available http://qr.jur.lu.se/Quickplace/juan02/Main.nsf/0/7BA763D5DCA73F3CC1257C1C00318397/$file/hirschl.pdf

• Ferejohn J, ‘Judicialising Politics, Politicizing Law’ 65 Law &

Contemp. Probs. 41 (2002)

• Helen Suzman Foundation, ‘The Implications of the SCA’s

Simelanejudgment’(2011) available

http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page716

56?oid=270137&sn=Detail&pid=71656

• Hunt, S ‘The Judicialisation of Politics in Canada and the United States’ (2013) Bowling Green State University

• Kapurura T, ‘Was The Recent Election Deadline Legislated From The

Bench?’ available http://www.zimeye.org/?p=82710

• Matyszak D ‘New Bottles: Old Wine – An Analysis of the

Constitutional Court Judgment on Election Dates’ Research &

Advocacy Unit (2013)

• Silverstein G ‘Law’s Allure in American Politics and Policy: What It Is, What It Is Not, and What It Might Yet Be’ Law & Social Inquiry 35, No. 4 (2010)

• Southal R, ‘Too Soon To Tell? Land Reform in Zimbabwe’ (2011) availabled-nb.info/102441471X/34

67 | P a g e




http://qr.jur.lu.se/Quickplace/juan02/Main.nsf/0/7BA763D5DCA73F3CC1257C1C00318397/$file/hirschl.pdf




• Ugochukwu, B ‘The Pathology of Judicialization: Politics, Corruption and the Courts in Nigeria’ The Law and Development Review: Vol 4: No.3, Article 4

• Veritas ‘Pre – Referendum and Pre – Election Challenges Dismissed by the Courts’ available http://www.thezimbabwean.co/news/zimbabwe/68169/pre-referendum-and-pre-election.html

• Wallis A ‘Zimbabwe’s Election Ruling: A Constitutional Conundrum’

Southern Africa Litigation Centre (2013)

Newspaper and other media articles

• 'Judiciary only interprets the law' , February 15, 2006

http://www.herald.co.zw/inside.aspx?sectid=523&livedate=2/15/2006%2012:00:00%20AM&cat=10

Case Law

Zimbabwean

• Associated Newspapers of Zimbabwe (Pvt) Ltd v Minister of State in the

President’s Office & Ors S – 20 – 2003

• Chombo v Parliament of Zimbabwe & Ors SC 107/12

• Commercial Farmers Union et al. v Minister of Lands & Rural

Resettlement et al. SC 31/10

68 | P a g e

• Jealousy Mbizvo Mawarire v Robert Gabriel Mugabe N.O. & Ors CCZ 1/13

• Kuchera & Ors v The Minister of Justice, Legal & Parliamentary Affairs

HH – 36 – 08

• Kufa & Another v The President of the Republic of Zimbabwe N.O. & Ors

HH – 86 – 11

• Maria Phiri v The President & Ors

• Minister of Justice & Legal Affairs v Jealousy Mawarire & Ors

• Minister of Lands, Agriculture & Rural Resettlement & Others v

Commercial Farmers Union 2001(2) ZLR 457 (S)

• Morgan Tsvangirai v The President & Ors

• Nixon Nyikadzino v The President, the Prime Minister & Ors

• Omar v Matutu & Ors HH – 74 - 08

• Tsvangirai v Registrar General of Elections & Ors SC – 20 - 2002

• Tsvangirai v Mugabe & Anor SC 84/05

• United Parties v Minister of Justice, Legal and Parliamentary Affairs and

Ors 1997 (2) ZLR 254 (S)

International

• Baker v Carr (1962) 369 U.S. 186

69 | P a g e

• Bush v Gore 531 U.S. 98 (2000)

• Democratic Alliance v President of the Republic of South Africa and

Others 2012(1) SA 417 (SCA)

• Jayesh Shah & Another v HSBC Private Bank Limited

• Marbury v Madison 5 U.S. 137 (1803)

• Mazibuko, Leader of the Opposition in the National Assembly v Sisulu, MP Speaker for the National Assembly 2013(4) SA 243 (WCC)

• Mazibuko, MP, Leader of the Opposition in the National Assembly v Sisulu, MP, Speaker of the National Assembly & Anor 2013(6) SA 249 (CC)

• Miranda v Arizona 384 U.S. 436 (1966)

• Monroe v Pape 365 U.S. 167 (1961)

• Parenthood v Casey 505 U.S. 833 (1992)

• Quebec Secession Reference [1998] 2 S.C.R. 217

• Roe v Wade 410 U.S. 113 (1973)

• Swann v Charlotte – Meckelnburg Board of Education 402 U.S. 1 (1971)

Statutes

Zimbabwean

• Lancaster House Constitution of Zimbabwe

• Constitution of Zimbabwe Amendment (No. 20) Act, 2013.

• Electoral Act [Chapter 2:13]

70 | P a g e

• Presidential Powers (Temporary Measures) Act [Chapter 10:20]

South Africa

• Constitution of the Republic of South Africa

• National Prosecuting Authority Act 32 of 1998

Bulgaria

• Constitution of Bulgaria

Ireland

• Constitution of Ireland

Kenya

• Constitution of Kenya

Malaysia

• Federal Constitution of Malaysia

Websites

• d-nb.info/102441471X/34

• http://www.herald.co.zw/inside.aspx?

sectid=523&livedate=2/15/2006%2012:00:00%20AM&cat=10

• http://nehandaradio.com/2013/06/07/my-dissent-in-jealousy-

71 | P a g e


mawarire-vs-robert-mugabe-tino-chinyoka/

• http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page716

56?oid=270137&sn=Detail&pid=71656http://www.zimeye.org/?

p=82710

• http://qr.jur.lu.se/Quickplace/juan02/Main.nsf/0/7BA763D5DCA73F3CC1257C1C00318397/$file/hirschl.pdf

• http://www.thezimbabwean.co/news/zimbabwe/68169/pre-

referendum-and-pre-election.html

72 | P a g e










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