Judge President gives Reasons for Granting Mugabe By-elections Waiver

High Court Judge President Justice George Chiweshe on Monday April 8 gave the full reasons for the order he granted on Friday April 5, giving President Robert Mugabe a waiver from holding three by-elections in Matabeleland.


Chiweshe, who presided over the controversial 2008 harmonized elections as the then Zimbabwe Electoral Commission (ZEC) chairperson, was presiding over the matter in which President Mugabe sought to be excused from a court order delivered in 2012, instructing him to call for the by-elections.


Mugabe who was being represented by the Deputy Attorney General Advocate Machaya argued that the earlier court order no longer made economic sense, after initially seeking and being granted an order to announce the by-election date by March 31 2013, instead of August 30 2013.


"In the present application the applicant seeks to be excused altogether from the performance of that order.

"The applicant reiterated his position that the present parliament will stand dissolved on 29 June 2013 and harmonized elections, if not held by then, will remain imminent.

"It is common cause that applicant was sworn in as President on 29 June, 2009. The life of the present Parliament must be deemed to run from that date, for a period of five years.

"Calculated from that date there is no doubt whatsoever that the life of the present Parliament shall end on 29 June 2013, € said Chiweshe.


He added that it was only permissible to extend the life of parliament beyond 29 June "if the country is at war or under a declared state of public emergence € as provided for in Section 63 (5) and (6) of the Constitution.


"No such situation presently obtains in the country. I have no reason to believe otherwise today or any time in the near future. I am convinced therefore that the life of the present Parliament will end by operation of law on 29 June 2013. In other words the Parliament, to which the respondents aspire to be elected, shall cease to exist on that date, € said Chiweshe.


Chiweshe suggested that the President's counsel Adv. Machaya had shown that if by-elections were proclaimed, they could be permissibly held, after the maximum 71 days leeway, on Saturday June 15, 2013. The winners would be sworn on Monday 17 June, leaving the new MPs with just 12 days as Parliamentarians.


Chiweshe however admitted that according section 38 (1) (b) (ii) there was a possibility that the election could have been held on May 13 had the elections been proclaimed on March 31, adding: "If held on May 13, the winners would enjoy their new found status! €


He however said by dint of the same Section the same elections if proclaimed on March 31, could have been held at the latest on June 4 leaving the new MPs with only 25 days in Parliament.


"These timelines, whose accuracy is subject to scrutiny, clearly demonstrate that there is merit in applicant's submissions that it no longer makes practical sense to insist that these by-elections be held at all costs, € Chiweshe said.


He concluded: "In the final analysis I agree with the applicant that compliance with the existing order is no longer reasonable and practical. €


The President apparently was granted an interim relief that he "be and is hereby excused from performance of the order granted in case No. HC 11222 of 2012 provided harmonized elections are held on or before the 29th June 2013 € which the Head of State could try to use as an excuse to call for early elections without reforms.


Former legislators Abednico Bhebhe, Njabuliso Mguni and Norman Mpofu approached the courts and were granted a court order in 13 October 2011, ordering President Mugabe to call for by-elections for Nkayi South, Lupane East and Bulilima East constituencies which they held before being expelled from Parliament at the behest of the MDC-N allegedly for defecting to the MDC-T.


The defense counsel Advocate Thabani Mpofu suggested the President had never intended to hold the by-elections and set a bad legal example by manipulatively disregarding court orders.

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