Constitutional Court Mawarire v Mugabe NO & Ors Malaba DCJ of Parliament is difficult to justify. It requires that the word “after” in s 58(1) be ignored or expunged and in its place read the word “before”. On what event would the proclamation fixing the date or dates of the election be based on except itself. The fact is that there is nothing in s 58(1) of the former Constitution imposing on the President an obligation to fix a day or days of the election to coincide with the date of the end of the natural life of Parliament. If that were the case the date of the election would be known in advance as if it was fixed by legislation. If the framers of the former Constitution had intended the election date to fall on the last day of the maximum duration of the life of Parliament they would have said so. They would have imposed the duty on the President to simply issue the proclamation announcing that date. There would have been no need at all to vest the President with the power to “fix” “such day or days” of the holding of the election. It is clear to me that the words “fix” and “day or days” indicate the conferment of a discretionary power. In other words the date of an election remains unknown to the public until the publication of the proclamation fixing it in the Gazette. Reference to s 158(1)(a) of the New Constitution is inappropriate. Section 158(1) provides that “a general election must be held so that polling takes place not more than thirty days before the expiry of the five-year period specified in s 143”. Section 158(1) cannot be used to support the applicant’s contention. It is correct to say s 143 of the New Constitution relates to automatic dissolution of Parliament. Section 3 (1)(e) of Part 2 of the Sixth Schedule to the New Constitution makes it clear that s 158 does not come into operation on the publication day. Section 1 of Part 1 of the Sixth Schedule provides that the “first elections” should be held in terms of the New Constitution. In fact s 8 of Part 3 of the Sixth Schedule specifically provides that the “first elections” must be conducted in terms of an Electoral Law in conformity with this Constitution. In suspending the coming into operation of s 158 the framers of the New Constitution were aware of the provisions of s 58(1) of the former Constitution. They were aware of the clear conflict between the position provided for under s 58(1) and that enacted by s 158(1)(a) of the New Constitution. Section 158(1)a) provides for the fixing of the date of election within the specified period before the date of automatic dissolution of Parliament. Section 58(1) to the contrary provides for the fixing of the date of the election within the prescribed period after the date of automatic dissolution of Parliament. For the purposes of the timing of the holding of the first elections the former Constitution operates simultaneously with the New Constitution. In any case the applicant’s case is not that a general election must take place within four months before the President leaves office or Parliament is dissolved by operation of law. His case is that s 58 (1) authorises the issuance by the President of a proclamation fixing the date of the first elections on 29 June 2013 some four months before the date of automatic dissolution of Parliament. It is important to refer to constitutions of other countries practicing constitutional democracy. Section 55(3) of the Malaysian constitution provides that: “Parliament unless sooner dissolved shall continue for five years from the date of its first meeting and shall then stand dissolved.” Section 55(4) then provides that the general election “shall be held within sixty days from the date of dissolution of Parliament”. During the debate on the 13th General Elections in Malaysia there was no question about the period of sixty days running after the date of the automatic dissolution of Parliament. The debate centred on when the prime minister would fix the date of the election. 18