Constitutional Court Mawarire v Mugabe NO & Ors Malaba DCJ (5) … (6) … (7) Subject to the provision of subsection (4), any prorogation or dissolution of Parliament shall be by proclamation in the Gazette and, in the case of a dissolution, shall take effect from the day preceding the day or first day, as the case may be, fixed by proclamation in accordance with section 58(1) for the holding of a general election.” According to the interpretation of s 58(1) which the applicant wants the court to apply, the provision imposes on the President a duty to fix 29 June 2013 or a day after as the date of the first elections. He contends that s 58(1) requires the President to issue a proclamation fixing the date of the first elections within four months before the date of automatic dissolution of Parliament. It is common cause that, barring any dissolution by proclamation, the Parliamentary term of five years will come to an end at midnight on 29 June 2013. It is common cause that up until the hearing of the application on 24 May, the President had not fixed the date of the first elections. The applicant alleges that he has a right to the performance by the President of his legal duty to fix 29 June 2013 as the date of the first elections. He says his corresponding right derives from the fact that he is a registered voter. As a result of the alleged failure by the President to fix 29 June 2013 as the date of the first elections, the applicant alleges that his right to the protection of the law has been violated. I have no difficulty in recognising in the applicant the right to approach the court in terms of s 24(1) of the former Constitution seeking the relief of an order of mandamus against the President. The principal on locus standi is after all that it is better to let people have access to the fountain of justice where they fail for the reasons of their folly than have them blame the gate keepers. An order of mandamus is a means of relief which the court in the exercise of its wide discretionary powers under s 175(6)(b) of the New Constitution can, in appropriate cases, grant. In determining the questions raised by the applicant I bear in mind the fact that elections are crucial to democracy. This is particularly so at this stage of the history of our country. The first elections which are due to be held under the New Constitution are bound to test the readiness of Zimbabweans to embrace the change embodied in the New Constitution. The leadership that is going to emerge elected will have to embrace the new values prescribed by the New Constitution. Choosing the precise date to hold the first elections is therefore a matter of utmost importance to be handled with greatest care. There is no doubt that s 58(1) of the former constitution grants power for the fixing of the date of the first elections. For ease of understanding of the import of the provisions, I have analysed them against a framework which looks at the nature of the power, the repository, the contents, the conditions and restrictions on its exercise. The answers to these questions determine the democratic quality of the first elections as they depend on the guarantees that surround these different aspects of the choosing of the date of the elections. Section 58(1) vests in the President discretionary power to fix a day or days of the first election by proclamation published in the official Gazette. The use of the word “may” is clearly indicative of the fact that the power conferred on the President is of discretionary nature. It means that the President can act on his own discretion or judgment. It is not a power which is accompanied by a duty on the President to act in a specified manner at a specified time. In matters in which the President has discretion he may seek advice from any quarter but he must discharge his duties to the best of his own judgment and ability. The power is vested in the President but he has the freedom to decide when to act provided he observes all 15