President Robert Mugabe yesterday scored a victory after High Court Judge President Justice George Chiweshe ruled in his favour allowing him to postpone the holding of by-elections until March 31 next year.
Report by Everson Mushava/Charles Laiton
In a brief judgment, Chiweshe said reasons for his determination would follow in due course.
“Period in which to comply with the order granted in case number SC267/11 be and hereby is further extended to the 31st day of March 2013. There will be no order as to costs, my reasons will follow,” Justice Chiweshe said.
But Tawanda Zhuwarara and Jeremiah Bhamu, the Zimbabwe Lawyers for Human Rights representing the three MPs —Njabuliso Mguni, Norman Mpofu and Abedinico
Bhebhe –who challenged Mugabe to set a by-election date immediately, challenged the jurisdiction of the High Court to vary an order given by a superior court.
The lawyers also challenged Justice and Legal Affairs minister Patrick Chinamasa’s authority to deposit an affidavit on Mugabe’s behalf.
“The fundamental question that was before the court today was whether or not the government will be given an extension from the one they had given by consent, that is the 1st of October,” Zhuwarara said.
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According to the lawyers, the High Court cannot overrule a ruling by the superior court if there was no consent between the two parties. “We managed to put to the court our reasons for opposing the application and the long and short of it is that the court wants to plead poverty. It is rather a curious argument that the country cannot afford democracy due to poverty.
“That in itself we find so many faults with. They made their own submissions that at this juncture they cannot hold elections and we oppose that because constitutionally, that is faulty because government is a creature of law and being that, it needs to comply with that law especially in circumstances that the law has been confirmed with the higher court. I think it is high time they complied,” Zhuwarara said.
Mugabe’s lawyer Advocate Ray Goba said the debate raised legal questions on whether the High Court had the power to vary a Supreme Court order “whether that power is discretionary power and what circumstances that power can properly be exercised and whether in this particular case it is appropriate to exercise that power to vary the final order,” Goba said.
He said Mugabe respected the Supreme Court order, but as the Head of State and Government, he was aware that the country had no financial capacity to hold elections.
“The case is set and it is now up to the court to decide on the matter.”
“It is its jurisdiction whether it has the power to issue the order and if it has the power, what is the nature of that power. We have submitted that it is an appropriate case in which the court should vary a court order now because the Supreme Court was approached on appeal and it simply altered the order.”
In July this year, the Supreme Court ordered Mugabe to proclaim by-election dates in three constituencies by August 30, but the President approached the courts and begged for a month’s extension to push the deadline to September 30.
At the expiry of the September deadline, however, he made another application seeking a further extension to March 31, 2013, the date tentatively earmarked for harmonised elections.
In his court papers, Mugabe argued that he could not call for by-elections in the three constituencies in Matabeleland because of the country’s financial constraints. With the constitutional referendum in sight, Mugabe said the move would congest the calendar of national events in the next six months.
Meanwhile, the MDCs have already rejected the March deadline for elections, saying the environment was not yet conducive for holding of free and fair polls.
