Constitutional Court
Mawarire v Mugabe NO & Ors
Malaba DCJ/Patel JA
clearly falls in the "within four months after the automatic dissolution of Parliament
argument".
It also defeats logic for the majority to find that the President has broken the supreme
law of the land and at the same time authorise him to continue acting unlawfully. That is a
very dangerous principle to apply as it has no basis in law. The principle of the rule of law
just does not permit of such an approach.
A finding that the President has a discretionary power under s 58(1) which he has to
exercise within the prescribed time limits would clearly avoid such a contradictory order by
the majority.
For all these reasons I should dismiss the application with costs.
PATEL JA: On the question of locus standi, I entirely concur that the applicant has
established the requisite standing to institute this application. Pursuant to s 18(1) of the former
Constitution, which guarantees the protection of the law and constitutional due process, he
undoubtedly has the right to have general elections held when they are due as prescribed by
the law. By the same token, s 18(1 a) of that Constitution bestows upon him a legitimate
expectation that the President, the first respondent, will exercise his functions as a public
officer in fixing election dates in accordance with the law.
The fact that he has an alternative administrative law remedy by way of mandamus does
not, in my view, preclude his entitlement to approach this Court for constitutional relief. In
this regard, I respectfully adopt the reasoning and conclusions of the learned CHIEF
JUSTICE.
Turning to the substantive merits of the matter, the principal issue for determination is
the meaning of and interrelationship between ss 58(1), 63(4) and 63(7) of the former
Constitution. On this aspect, I fully endorse the principle of constitutionalism that informs the
approach taken by the learned CHIEF JUSTICE and the majority of the Court. However, I am
constrained, with the utmost respect, to disagree with the construction that they place on the
provisions under review, in particular, on s 58(1).
The tripartite structure of the State is the keystone of every constitutional democracy
and the need to safeguard the attendant separation of powers is unquestionably paramount.
However, as was recognised in Mike Campbell (Pvt) Ltd and Anor v Minister of Lands and
Anor 2008 (1) 17 CS) at 33-35, the clear words of a Constitution must be construed to
override any doctrine of constitutionalism predicated on essential features or core values. In
general, the principles governing the interpretation of a Constitution are basically the same as
those governing the interpretation of statutes. One must look to the words actually used and
deduce what they mean within the context in which they appear. See Hewlett v Minister of
Finance 1981 ZLR 571 (S) at 580. If the words used are precise and unambiguous, then no
more is necessary than to expound them in their natural and ordinary sense. See The Sussex
Peerage (1843-1845) 65 RR 11 at 55. In essence, it is necessary to have regard to the words
used and not to depart from their literal and grammatical meaning unless this leads to such an
absurdity that the Legislature could not have contemplated it. See, in this regard, the case
authorities cited by the learned CHIEF JUSTICE.
Section 58(1) of the Constitution, as amended by Act No. 11 of 2007 to accommodate
harmonised elections, prescribes when general elections are to be held and the fixing of
election dates, as follows:
"A general election and elections for members of the governing bodies of
local authorities shall be held on such day or days within a period not
exceeding four months after the issue of a proclamation dissolving Parliament
under section 63(7) or, as the case may be, the dissolution of Parliament
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