The Constitutional Court (Concourt) yesterday upheld the July 31 poll date after dismissing Prime Minister Morgan Tsvangirai’s application seeking an extension.
REPORT BY CHARLES LAITON
But the two MDC parties last night said the polls would be held without the necessary reforms to ensure a free and fair election. Chief Justice Godfrey Chidyausiku said Tsvangirai and his co-applicant MDC leader Welshman Ncube had ample time to challenge the election date prior to the proclamation by President Robert Mugabe on June 13.
Justice Chidyausiku said it was mind-boggling that Tsvangirai and Ncube decided to challenge the July 31 election date, but failed to do the same when the initial lawful constitutional date was violated.
“Applicant (Tsvangirai) did nothing to ensure that the laws were not broken and ensure the elections were done by June 29 this year. The violation of that date was the mother of all the irregularities,” Chief Justice Chidyausiku said.
“Why do you say the elections are impossible to be held on July 31? Why concerned of the violation now and not concerned before June 29? You had an opportunity and you squandered it and now want to seek relief with this court,” the Chief Justice added addressing Tsvangirai’s lawyer Advocate Lewis Uriri.
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Deputy Chief Justice Luke Malaba took Uriri to task to explain why Tsvangirai had not sought relief with the court prior to the proclamation of the election date by Mugabe.
“Before June 13 when the proclamation was made, why did he not come to seek that extension? It looks like there is a deliberate choice of approach. At law, once a proclamation is done, no court has the power to postpone elections,” Justice Malaba said.
“I am yet to hear even internationally where an election process has taken place and is said to have been stopped by the courts.”
Chief Justice Chidyausiku left the gallery in stitches when he said even if the election doors were locked by the proclamation process, Tsvangirai had the keys.
“The door was locked by the proclamation process, but he (Tsvangirai) still had the keys,” Chief Justice Chidyausiku said.
In response to the questions on why Tsvangirai failed to approach the court before proclamation, Uriri said it was because the PM felt everything was being done in the spirit of the Global Political Agreement (GPA).
The court proceedings also witnessed a sudden U-turn by Justice minister Patrick Chinamasa who told the court through his lawyer Advocate Fredrick Gijima that he did not intend to file the application seeking an extension of the election date. Chinamasa said he was “whipped” by Sadc in Mozambique to submit an application which he personally did not want to file.
“My client has been whipped by Sadc to come and appear before this court,” Gijima said.
Asked by the court what locus standi did Sadc have to force Chinamasa to appear before the court, Gijima said: “He does not know why and he leaves everything in the hands of the court. My client says whether the date is extended or not it does not matter.”
Mugabe’s lawyer Advocate Terence Hussein said the former had complied with the court’s ruling and was prepared to hold elections on July 31.
“The President does not want to challenge the decision of this court. If the extension is granted, my client is ready to accept and if dismissed we will go to the polls on July 31,” Hussein said.
While representing Ncube, Advocate Thabani Mpofu had submitted to the court an application seeking an extension of the polls date, but it was also dismissed.
Jealous Mawarire’s lawyer Advocate Joseph Mandizha also urged the court to dismiss Tsvangirai’s application. Zimbabwe Electoral Commission was represented by Tawanda Kanengoni.
Commenting on the judgment, MDC-T secretary-general Tendai Biti said: “First, the judgment is not a surprise. You did not need to be a rocket scientist or a professor of law to know this would be the outcome.
“What is regrettable is that we go into the elections without media reforms, security reforms and legal reforms. Under any stretch of imagination, before we go into the election, it will not be a free and fair election.
“What Mugabe and the chaos faction have succeeded in doing is to make a mockery of Sadc and its resolutions and render it a toothless bulldog.
“I will be meeting the principals next week about funding of the elections. We don’t have the money and it will have to be sourced externally.
“As a scientist, I know that a car will not move if it does not have fuel. We don’t have money. The situation is now desperate and Sadc has an obligation to find the money.”
MDC national spokesperson Nhlanhla Dube said: “From the day (Justice) minister Chinamasa wrote that letter to the Concourt, it was like a boy writing a letter to a girl and proposing love to her, but writing it in such a way that the only response she can give is go and hang. It was clear from the onset that the intention of Zanu PF was to snub Sadc. It is not a judgment that bodes well for free and fair democratic elections.”
He said the election could never be free and fair without media and legal reforms such as amending Posa. “Zimbabweans should punish Zanu PF through the ballot. Zanu PF wants to use rugby rules for a football match.”