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Elections: time for MDC-T to put up or shut up

ON TUESDAY, April 23, the MDC-T circulated a flawed legal opinion allegedly written by Tererai Mafukidze, who is not well-known in legal or constitutional circles which sought to fault the otherwise unassailable argument by the Clerk of Parliament Austin Zvoma to the effect that in terms of the current Constitution the next elections must be held by June 30, the day after the automatic dissolution of Parliament at midnight on June 29.
There are two serious problems about the MDC-T’s flawed position fronted by Mafukidze which are self-evident even to non-lawyers and which expose the MDC-T’s fatal fear of the impending elections which by law must be held by June 30.
In the first place, the MDC-T used Mafukidze to wilfully make a patently fraudulent interpretation of Section 58(1) of the Constitution and in the second place the MDC-T has sought to use that fraudulent interpretation to make a backdoor proposal which exposes the fraudulent interpretation by proposing an amendment of the same Section 58(1) of the Constitution to facilitate the extension of the life of Parliament for at least four months after its automatic dissolution on June 29.
Section 58(1) of the Constitution provides that “A general election and elections for members of the governing bodies of local authorities shall be held on the day or days within a period not exceeding four months after the issue of a proclamation dissolving Parliament under section 63(7) and, as the case may be, the dissolution of parliament under section 63(4) as the President may, by proclamation in the Gazette fix.”
The MDC-T has used Mafukidze to disfigure and make nonsense out of section 58(1) by fraudulently interpreting it as if it is dealing with two different situations for the issuance of a proclamation for a general election and elections for members governing bodies of local authorities with one situation arising from an early dissolution of Parliament and another situation arising from the dissolution of Parliament by operation of law.
It should be quite clear, even to bush lawyers, that in terms of Section 58(1) a proclamation by the President in the Gazette fixing a day or days for a general election must be “within a period that does not exceed four months” before the dissolution of Parliament either in accordance with Section 63(4) or Section 63(7).  Section 58(1) refers to and is about one and the same situation of giving notice to the holding of a general election within a period of four months before the dissolution of Parliament whether it is dissolved in terms of Section 63(4) or Section 63(7).Advertisement

It is for this reason that the two different scenarios of dissolution of Parliament referred to in Section 58(1) are joined by the operative word “and” and not by the word “or”. In other words Section 58(1) is not about Section 63(4) or Section 63(7) but it is about Section 63(4) and Section 63(7) “as the case may be”. The wording of “as the case may be”  that is in Section 58(1) means that regardless of how the dissolution of Parliament is achieved, the President must issue a proclamation in the Gazette fixing a date for a general election within a period not exceeding four months of the dissolution. If the Constitution provided for the holding of a general election within four months after the automatic dissolution of Parliament in terms of Section 63(4), then that would have been catered for in a separate section outside Section 58(1).
The MDC-T has, through Mafukidze, mischievously recast the second part of Section 58(1) to read that “A general election shall be held on the day or days within a period not exceeding four months after… the dissolution of parliament under section 63(4) as the President may, by proclamation in the Gazette, fix”. This recasting is fraudulent. There are three reasons for this conclusion which demonstrate the fraud.
In the first place, the recasting edits out the crucial reference to the President’s proclamation. The operative part of Section 58(1) says “A general election and elections of the governing bodies of local authorities shall be held on the day or days within a period not exceeding four months after the issue of a proclamation…” The four months period is inextricably tied to the “issue of a proclamation”.  You count the four months after the issue of the proclamation.
It is trite that the proclamation referred to in Section 58(1) must be issued before and not after the dissolution of Parliament, which can only be achieved either in terms of Section 63(4) or Section 63(7). Furthermore, and crucially, the Constitution does not contemplate any extension of the life of Parliament beyond its automatic dissolution outside only two scenarios provided in Section 63(5) under which Parliament’s term can be extended: if Zimbabwe is at war, for by a period of one year at a time; or Section 63(6) which permits the extension of the life of Parliament for a period of six months at a time if the country is in a state of emergency in accordance with Section 31(J)(i) of the Constitution.
Against this backdrop, the MDC-T’s submission through Mafukidze is fraudulent in so far as it corruptly seeks to extend the life of Parliament for four months from June 29 via the backdoor using Section 58(1) which clearly does not deal with the extension of the life of Parliament for any period. An attempt to use something, anything, for what it is not meant for is a fraud.
In the second place, the MDC-T’s recasting of the second part of Section 58(1) through Mafukidze’s blind eyes is fraudulent because, apart from leaving out the foundational reference to the issue of a proclamation, it also edits out the operative reference in the section in question to “as the case may be”. This reference is important and leaving it out is fraudulent because it loses the meaning that the President’s issue of a proclamation to hold a general election should be within a period of four months before the dissolution of Parliament whether the dissolution is achieved automatically by operation of law in terms of Section 63(4) or whether it is done before the mandatory expiry of the life of Parliament in terms of Section 63(7).
The meaning of the words, “as the case may be” means either of the two possible circumstances of dissolution would suffer the same consequences of requiring the proclamation for a general election to be issued within four months of the dissolution. In other words, “as the case may be” means that notwithstanding the different causes of the dissolution of Parliament, the issue of a proclamation to hold the general election within four months of the dissolution would apply or hold mutatis mutandis.
In the third place, the MDC-T’s recasting of the second part of Section 58(1) is fraudulent in that it deliberately ignores the self-evident fact that the need for a proclamation to hold a general election within four months of the dissolution of Parliament in terms of either Section 63(4) or Section 63(7) is joined by the operative word “and”, not “or” and not “but”. What this means is that the need for the proclamation in the Gazette fixing the day or days of a general election in terms of Section 58(1) of the Constitution applies to both the dissolution of Parliament in accordance with Section 63(4) and in accordance with Section 63(7).  About this, there can be no doubt.
In the fourth place, the MDC-T’s mischief and indeed fraud is exposed by the conclusion of Mafukidze’s flawed submission which out of the blue and contrary to his main argument that Section 58(1) allows for the general election to be held within up to four months after the automatic dissolution of Parliament by operation of law on June 29, “there’s a need to find a way via the process of enacting a new constitution, to extend the life of parliament for a limited period to enable it to conduct its important work on aligning current laws with the anticipated constitutional dispensation”.
Apart from the fact that Mafukidze does not prove such a need besides merely asserting it on behalf of the MDC-T, it should go without saying that those who want the life of the current Parliament to be extended beyond its automatic expiry must come clean like the driver of tractor and say so without hiding under fraudulent arguments over the meaning of Section 58(1) whose clear import is that Zimbabweans must elect a new Parliament by June 30.
The argument that the life of the current Parliament should be extended to “enable it to conduct its important work on aligning current laws with the anticipated constitutional dispensation” is sophomoric and not worth taking seriously. Surely, the business of aligning existing laws with the Constitution belongs to the next Parliament which must be elected by June 30 to ensure that there is no gap between the current and the next Parliament. This is more so given the fact that the bulk of the new Constitution will take effect the day the President is sworn in after the forthcoming elections. Delaying the elections will thus effectively delay the commencement of the new Constitution and that cannot be in the public or national interest at all.
In the circumstances, the time for elections has clearly come by operation of the law and the law must therefore be allowed to take its full course. The MDC-T has made a lot of noise claiming to respect and champion the rule of law. The time has now come for Morgan Tsvangirai and company to put or shut up on this score.
Professor Jonathan Moyo is the Zanu PF MP for Tsholotsho North