Constitutional Court
Mawarire v Mugabe NO & Ors
Chidyausiku CJ
As can be deduced from what is concluded above, the first respondent is already out of time
in fixing and proclaiming dates for the harmonised general elections to be held before the
expiry of the life of the current Parliament. The applicant's rights as already stated above have
already been infringed and continue to be violated with each passing day. The applicant is
entitled to the declaration of such infringement and an order correcting or rectifying as far as
is possible such infringement. See Commercial Farmers' Union v Minister of Lands & Ors
2000 (2) ZLR 469 at 486-487.
When the first respondent failed to fix and proclaim a date for Presidential,
Parliamentary and local government elections, as required by s 58(1) of the Constitution, to
enable elections to be held on the dissolution of Parliament on 29 June 2013, not only did he
violate the applicant's fundamental right as protected by s 18 of the Constitution, he thereby
derailed the electoral process. From then onwards, the rule of law as regards the electoral
process was no longer extant. It is imperative that the rule of law be restored to the electoral
process and the applicant be afforded some relief.
The first respondent has placed himself in a serious legal quandary or predicament by
his failure to issue the said proclamation timeously. The first respondent cannot remedy the
situation by issuing the proclamation for elections to be held by 29 June 20l3, as doing so will
inevitably contravene the time lines set out in s 38 of the Electoral Act. Prospective
Parliamentary candidates are entitled, in terms of s 38 of the Electoral Act, to fourteen days to
organise their nominations and thirty days to campaign before the date of the elections. Thus,
affixing the date of the elections now in terms of s 58(1) of the Constitution in anticipation of
the dissolution of Parliament on 29 June 2013 will have the effect of violating the
fundamental right of aspiring Parliamentary candidates, entitling them to bring similar
applications to that of the applicant.
Apart from this, the coming into operation of the new Constitution of Zimbabwe has
further complicated the situation. The new Constitution has introduced new time lines and
necessitated amendments to the Electoral Law, making the immediate issuance of a
proclamation fixing the date for harmonised elections on the dissolution of Parliament on 29
June 2013 legally impossible.
The Court, in my view, is compelled to take into account the exigencies of this situation in the
order that it makes. Thus compliance with the Court order must not of necessity compel the
first respondent to contravene another electoral provision.
The applicant must have appreciated the first respondent's legal predicament. In his
draft order, the applicant asked for the immediate issuance of a proclamation fixing the date
of the harmonised elections upon the dissolution of Parliament on 29 June 2013. In the
alternative, the applicant asked for the issuance of a proclamation forthwith setting the date of
the harmonised elections by no later than 25 July 2013. I have no doubt that the applicant's
alternative relief is out of the realisation and appreciation of the first respondent's legal
predicament.
I am inclined to grant the alternative relief sought by the applicant and add six days to
25 July 2013 to compensate for the period between the hearing of this appeal and the handing
down of this judgement. The first respondent, while not explicitly consenting to the
alternative relief, indicated that he had no objection to such relief. The main litigants in this
matter, namely the applicant and the first respondent, are accordingly in agreement over the
alternative relief. This relief also accords with the Court's desire to issue an order that will
help restore legality to the electoral process as quickly as possible.
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