Constitutional Court Mawarire v Mugabe NO & Ors Malaba DCJ The Kenyan situation is even closer to ours. Kenya has had a new Constitution as us. The Constitution of Kenya 2010 has prescribed a precise general election date. Section 9 of the Sixth Schedule suspended the operation of some of the provisions of the New Constitution during the transitional period. The date of the first elections was fixed on the basis of the former Constitution. Section 9 of the Sixth Schedule provided that the “first elections for the President, National Assembly and the Senate shall be held within sixty days after dissolution of the National Assembly at the end of its term”. Cases that went to the courts in Kenya did not raise the question of when the period of sixty days started to run. The cases which were eventually decided by the High Court of Kenya raised the question whether the courts should involve themselves in fixing the date of the first election. In fact the High Court fixed the date of the first elections by calculating sixty days after the date of automatic dissolution of Parliament. In this case there are provisions of the New Constitution relating to the conduct of the first elections which the President would have to take into account in fixing the date of the elections. As pointed out earlier, s 8 of Part 3 of the Sixth Schedule requires that the first elections be conducted in terms of an Electoral Law in conformity with the New Constitution. Section 6(3) of the Part 3 of the Sixth Schedule requires that there be conducted by the Registrar-General of voters under the supervision of the Zimbabwe Electoral Commission a special and intensive voter registration and voters’ roll inspection exercise for at least thirty days after the publication day. Section 157(3) of the New Constitution requires that the electoral Law must provide for the nomination of candidates in any election to take place at least fourteen days after the publication of the proclamation calling for that election. It further requires that the polling in that election must take place at least thirty days after the nomination of candidates. The presumption of constitutionality requires that the President in the exercise of the discretionary powers vested in him should take into account all these factors in deciding to issue the proclamation fixing the day or days on which the “first elections” are to be held. All these factors are designed to ensure not only accountability to the electorate but also that the electorate plays a meaningful role in the election and make informed choices. In all matters relating to the “first elections” [Cap. 7] of the New Constitution is the supreme and binding law. The President would have to take into account the amendments which have to be made by Parliament to the Electoral Law and other regulations relating to the conduct of the elections to make them in conformity with the New Constitution. Section 157(5) provides that after a proclamation of the date of the first elections no amendment to the Electoral Law or to any law relating to the elections would have effect for the purposes of those elections. Any changes to such a law must be made before the proclamation is issued. What all this means is that the President's exercise of discretion in calling the first elections and fixing the date when the poll should be held must in itself be in conformity with the New Constitution. The applicant like all other potential voters must wait for the exercise by the President of his discretion in accordance with the law. The applicant seems to have been driven into making the application by his aversion for what he calls a situation in which executive and judicial arms of the government can function for four months without Parliament. The aversion is obviously based on the interpretation of the principle of separation of powers which is characteristic feature of constitutional democracy. Whilst the situation criticised by the applicant may be undesirable it is certainly not unconstitutional. It is a situation provided for by the Constitution. 19