Constitutional Court
Mawarire v Mugabe NO & Ors
Chidyausiku CJ
From the above conclusions, one can now pose a number of useful questions and try to
answer them. What is this proclamation that is required for both the Presidential and the
automatic dissolution of Parliament? What is its purpose? From a common sense position one
could say a proclamation is issued in advance, giving a period of notice and time prior to the
Presidential or automatic dissolution in order to afford the electoral authorities and the public
time to prepare for the elections. That appears to also coincide with the legal requirements
teased above. However, to get a real life "feel" of this phenomenon called "proclamation" I
dug up Statutory Instrument 7 A of 2008, which, of course, the Court is perfectly entitled to
take judicial notice of. It was issued on 24 January 2008 dissolving Parliament "with effect
from midnight on the 28th March, 2008", thus giving the electoral authorities and the public
slightly over two months to prepare for the elections. In that case, the night of dissolution was
perfectly followed by the day or days of elections as stipulated in s 63(7). The proclamation
goes on to fix the dates, places and times of the sitting of the nomination courts and the
presiding officials thereof throughout the country for Presidential, Parliamentary and local
government elections.
This proclamation was issued by the President using his discretion to dissolve
Parliament and call for elections in terms of s 63(7). It is important to note that the
proclamation is prospective, not retrospective, pointing to a date in future when Parliament
will stand dissolved and complying with all statutory time limits. Since the date for the
automatic end of the life of Parliament is known in advance, it would be perfectly feasible for
a President to anticipate such a date and issue a similar proclamation announcing that
Parliament shall stand dissolved by midnight of that day, followed by elections on the
following day or days and complying with all statutory time limits. Not only would it be
feasible, but, in my view, it would be the proper, constitutional and legal thing to do. In fact,
the question may be asked - since the date of automatic dissolution is known in advance, what
is the purpose of granting the President an additional four months within which to proclaim
the dates for elections after dissolution of Parliament? Is it to shield that decision from
Parliamentary scrutiny or to reward the President for having allowed Parliament to run its full
course, by granting the Executive four months to rule by decree? The mind boggles at this
strange effect of adopting Reading "B" of s 58(1).
The second scenario of interpreting s 58(1) also implies that the President must wait
until the life of Parliament would have expired in terms of s 63(4) and then issue a
proclamation recognising that fact and fixing dates within four months of the event. The
expiry of the life of Parliament would have passed silently without notice to all concerned but
with a dramatic effect of creating a deformed State without Parliament for up to four months.
As would be shown below, this would lead to an absurdity and glaring anomalies.
There are two approaches open to a Court faced with absurdities in the construction of
statutes-the narrow and the wider approach.
The narrow approach was articulated in The Queen v Judge of the city of London Court
[1892] QBD 273 by LORD ESHER as follows:
“If the words of an Act are clear, you must follow them, even though they
lead to a manifest absurdity. The Court has nothing to do with the question
whether the legislature has committed an absurdity. In my opinion the rule
has always been this-if the words of an Act admit of two interpretations, then
they are not clear; and if one interpretation leads to an absurdity, and the other
does not , the Court will conclude the legislature did not intend to lead to an
absurdity and will adopt the other interpretation”.
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