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Implications of Constitutional Application judgment
A constitutional crisis could be in store in Zimbabwe following a decision by the country's supreme court declaring the establishment of an electoral court in early 2005 was unconstitutional.
The ruling issued Tuesday effectively strikes down a provision of the Electoral Act that allowed the chief justice to name judges of the electoral court.
In particular, the ruling undermines the basis for constitutional amendments passed by the ruling Zanu PF party using the two-thirds parliamentary majority it acquired in the March 2005 general election.
The opposition Movement for Democratic Change and Claudius Marimo, its candidate for Goromonzi, Mashonaland East, in the 2005 balloting, asked the supreme court to declare the electoral court improperly constituted. Justice Minister Patrick Chinamasa and Attorney General Sobuza Gula-Ndebele were held liable for court costs. - Blessing Zulu, VOA
This is an analysis of the judgment by Harare law firm, Atherstone & Cook.See Malaba's judgment
See Ziyambi's judgment
Analysis by Atherstone & Cook
1. The Supreme Court in its decision reached the inescapable conclusion that the Electoral Court was improperly constituted.
2. It follows therefore that all the decisions made by the electoral court of 2005,are null and void.
3. Some of the factual findings made by the condemned Electoral Court are nevertheless considered sound. For instance, it was found in the Makoni North Election Petition of 2005 that, among numerous misdeeds committed in the run-up to the March 2005 election:
1. acts of physical violence were inflicted upon the voters of Makoni North
2. food distribution was politicised
3. resettled farmers were threatened with the repossession of their land if they voted for the MDC
4. We agree also with its findings of how distorted and unreasonable the law now is. In Makoni North, the judge made a specific finding that the people of the constituency were robbed of a free election and found that nevertheless the Act now precluded her from offering any remedy for that. In the other test trials, all the judges reached similar conclusions.
5. Although these and other findings are useful in judicial precedent and the political history of the country, the determinations of the revoked Electoral Court are not legally binding, nor of any force or effect.
6. The challenges on the 16 constituencies over which petitions were filed, and the complaint by Mr Bennett about his disqualification as a candidate in the Chimanimani constituency, therefore remain alive.
7. The dismissals, rejections and verdicts that had been passed by any of the Electoral Court judges have become meaningless.
8. The difficulty for the Petitioners is that the six-month period, in which election petitions had to be determined, has now lapsed while government refused to correct the law, and electoral court judges refused to refer the question of their appointment.
9. There must be, at law, some solution or remedy to the Petitioners to cure this injustice, since the Supreme Court specifically recognized that they were denied a fair hearing within a reasonable time by a properly constituted court, in violation of the Declaration of Rights, as enshrined in the constitution of Zimbabwe and in other relevant international law instruments.
9. Separation of powers and the security and independence of the judiciary may have been assisted to some extent by this development.
10. We now await clients’ further instructions as to how they wish to proceed.
Chris Mhike
Arterstone & Cook
Sheila Jarvis
Artherstone & Cook
*The matter was
argued by Adv. Eric Matinenga and Edith Mushore, instructed by Chris
Mhike and Sheila Jarvis.
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