Constitutional Court
Mawarire v Mugabe NO & Ors
Malaba DCJ
the requisite conditions of the exercise of the power. So s58(1) as the source of the
discretionary power defines the circumstances when the power may be exercised not when it
must be exercised.
There is in my view of the nature of the power conferred on the President by s 58(1) no
legal duty on him to fix 29 June 2013 or a day after as the date of the first elections as
suggested by the applicant.
This is not a case where the date of general election following automatic dissolution of
Parliament is precisely determined in the Constitution. The date is left to be chosen by
authority vested with the power to do so within a framework of time determined by the
Constitution. Within that timeframe the authority is left with a fairly large margin of
appreciation in choosing the day or days in which the election will have to take place. In that
regard the court has no power to dictate to the President when and how he should exercise the
discretion vested in him by the Constitution.
It is important that the repository of the discretionary power to fix the date of the first
elections is the President. He is a democratically elected authority. As he is vested with the
power to fix the date of the “first elections” in his capacity as the President of the Republic,
he is expected to take into account relevant factors relating to the proper conduct of the
elections in the national interest. He does not in that capacity act as a leader of a political
party.
The content of the discretionary power is very clear. It is the fixing of a day or days on
which the first elections are to be held. The discretionary power is to be exercised in exercised
in respect of a specific matter. Which day or days the President chooses to fix as the dates for
the election is a matter strictly within his discretion.
The court cannot get involved in determining for the President the manner in which he
should exercise his discretion. It cannot tell the President which day or days he should fix or
that he was wrong in fixing a certain day. It is not the function of a court of law to substitute
its own wisdom and discretion for that of the person to whose judgment a matter is entrusted
by the law. Whilst a court can review a public officer’s action for legality it cannot act as if it
were the Executive.
The real issue in this case arises because of the interpretation of the conditions and
restrictions imposed by the law on the exercise of the discretionary power by the President.
The first condition is of course not so controversial. It relates to the form the exercise of the
discretion should take. The President is required to give notice to the public of the day or days
he has fixed for the holding of the first elections in the Gazette. Upon public notification, the
date or dates fixed for the elections have legal effect.
The fact that the manner by which the President is required to make known to the public
the result of the exercise of his discretion is by proclamation published in the Gazette means
that it is an unconditional notification. It cannot be conditional upon the President reserving
for himself the right to dissolve Parliament by proclamation. That would be the implication if
the contention by the applicant that the proclamation fixing the date of the first elections must
be issued some four months before the date of automatic dissolution of Parliament is
accepted.
The next condition is one in respect to which the interpretation of s 58(1) by the
applicant has given rise to the question for determination. In my view s 58(1) is clear. It gives
the President the discretionary power to fix a day or days for the holding of the first elections
to fall within a period of four months calculated from the date of occurrence of any of the
events referred to in ss 63(4) and 63(7) of the former Constitution. The date or dates fixed for
the holding of the first elections must follow the date of the happening of the event concerned.
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