JUSTICE IN ZIMBABWE
74
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It should be noted that this dissenting judgment was given despite the concession by
respondents’ counsel that the reasoning of the judge a quo could not be supported.
The Tsvangirai case (Tsvangirai v Registrar-General of Elections &
Others S-20-2002)
The election to elect the President of Zimbabwe was due to be held on 9 and 10
March 2002. The applicant, who was the leader of the main opposition political party
in Zimbabwe, was the principal challenger to President Mugabe in the presidential
election.
On 5 March 2002 acting in terms of s 158 of the Electoral Act [Chapter 2:01] the
President promulgated the Electoral Act (Modification) Notice, 2002, published in
Statutory Instrument 41D of 2002 (“the Notice”).
Section 158 of the Electoral Act empowers the President to make statutory
instruments which “he considers necessary or desirable to ensure that any election is
properly and efficiently conducted and to deal with any matter or situation connected
with the elections.” Such a statutory instrument may, amongst other things “suspend
or amend any provision of the Electoral Act or any other law insofar as it applies to
any election.”
The Notice was issued three days before the presidential election commenced and
dealt with vital and important issues relating to the manner in which the election was
to be conducted. It altered the provisions of the Electoral Act in material respects and,
consequently, the conditions under which the election was to be conducted.
The applicant was aggrieved by the provisions in the Notice because he believed that
they gave President Mugabe an unfair advantage over him in the election. He brought
an urgent application directly to the Supreme Court in terms of s 24(1) of the
Constitution challenging the constitutionality of s 158 of the Electoral Act and the
Notice. He alleged that the s 158 and the Notice violated his and his supporters’
constitutional right to the protection of law [s 18(1)] and to freedom of expression
[20(1)].
Select target paragraph3
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