Expert rips into Chidyausiku judgment

A CONSTITUTIONAL law expert, Derek Matyszak, has alleged Chief Justice Godfrey Chidyausiku violated “basic rules of grammar” to make a crucial part in the Constitution on dates for elections“ambiguous”.

Staff Reporter

Matyszak made the observations in a paper on the landmark decision by the Constitutional Court on an application by Jealousy Mawarire.

The applicant claimed that President Robert Mugabe was obliged to set the dates for Zimbabwe’s next general election no later than June 29, 2013, when Parliament reaches the end of its prescribed five-year term.

Below is Matyszak’s argument.

“The determination of the issue revolved around the interpretation of subsection 58(1) of the old constitution, as read with subsections 63(4) and 63(7), which are still to apply until the new constitution becomes fully operational. So the first step in Justice Chidyausiku’s judgment was to construe section 58(1) so that its meaning became ambiguous. This was done by violating some very basic rules of grammar and in the following way.

Thus the judgment:
READING ‘A’
58(1) A general election and elections for members of the governing bodies of local authorities shall be held on: such day or days within a period not exceeding four months after the issue of a proclamation dissolving Parliament under section 63(7) or, as the case may be, the dissolution of Parliament under section 63(4) as the President may, by proclamation in the Gazette, fix.”

READING ‘B’
58(1) A general election and elections for members of the governing bodies of local authorities shall be held on such day or days within a period not exceeding four months after:

1. the issue of a proclamation dissolving Parliament under section 63(7) or, as the case may be, the dissolution of Parliament under section 63 (4) as the President may, by proclamation in the Gazette, fix.

There could be any number of other variations the section 58(1) text can be broken into, but the two scenarios above will suffice for the purpose of this case. Both Reading ‘A’ and Reading ‘B’ answer to the question when elections are to be held, but with one putting the emphasis on the preposition ‘on’ and the other on ‘after’. Both interpretations are compelling. Adopting one interpretation or the other results in starkly different outcomes. In one case, elections must be held within the life of Parliament. In the other case, elections may be held up to four months after the dissolution of Parliament.

A court faced with competing possible interpretations of a constitutional provision must call into aid principles or canons of construction.

Justice Chidyausiku inserts colons into the section (where none exist in the original) ostensibly to clarify the ambiguity, but in practice creates an ambiguity where none existed before.

The insertion of punctuation can dramatically change the meaning of a sentence, for example: ‘While the mother was cooking the baby her brother and the dog were sleeping.’ When punctuated, the sentence is easier to read: ‘While the mother was cooking, the baby, her brother and the dog were sleeping.’

But leave out a comma and the text becomes more sinister. ‘While the mother was cooking the baby, her brother and the dog were sleeping.’

By inserting a colon after ‘on’ in section 58(1), Chidyausiku CJ alters the meaning of the provision to read: 58(1) A general election and elections for members of the governing bodies of local authorities shall be held on:

i) such day or days within a period not exceeding four months after the issue of a proclamation dissolving Parliament under section 63(7) or,
ii) as the case may be, the dissolution of Parliament under section 63(4) as the President may, by proclamation in the Gazette, fix.

This has the effect of removing the application of the phrase ‘within a period not exceeding four months after’ from the portion of the section referring to dissolution under 63(4) which is the provision providing for the automatic dissolution of Parliament. The sense is then that the election must be held on the automatic dissolution of Parliament, that is, June 29, 2013.

However, the Legislature did not place any colon where the Chief Justice would like to read one. The sentence must thus be read without it and in accordance with the usual rules of grammar.

Hence a grammatical reading of the sentence requires that the phrase ‘within a period not exceeding four months after’ applies to that portion of the section relating to automatic dissolution. The sense is thus that an election need only be held within a period not exceeding four months after the automatic dissolution on June 29, 2013, that is, by October 29, 2013.

As with the example of the mother cooking her baby given above, Justice Chiyausiku thus creates a new meaning for section 58(1) and one which accords with the Applicant’s (and Zanu PF’s) desire.

The effect in sum is that the sentence is read to mean that the President must set the election date within a period of four months before the dissolution of Parliament. Yet the provision quite clearly uses the word ‘after’ and we must assume deliberately so.

Furthermore, this meaning also implies that where the election is pursuant to the automatic dissolution of Parliament, the election must be held on such dissolution and not within a period of four months thereafter.

The date then is not fixed by the President, a requirement to which the relevant sections repeatedly make reference, but is fixed by the term limit
of Parliament.

And there is no point in the President issuing a proclamation concerning a date for an election which is already known and determined.”

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32 Responses to Expert rips into Chidyausiku judgment

  1. Tsenza June 6, 2013 at 5:56 am #

    Plz tell us ward by ward where the Monday mobile reg.will be taking place.
    This is tym for action and definitely Herald will not provide us .

  2. Tsveruka June 6, 2013 at 6:41 am #

    If this is a prelude to future constitutional rulings, God help us!

  3. lobengula kumalo June 6, 2013 at 6:42 am #

    Maduutuu. Rendimaki ruling is saying vakuru vachatara iro zuwa richa itwa ma elections not later than July 31. Chete chete. Muri madofo ane zvitambhi haikona?

  4. Joseph State Watanga June 6, 2013 at 6:55 am #

    If you see zanupf celebrating a ruling, be sure of one thing, There is something terribly wrong with it. Zanupf is now the party always on the wrong.

  5. bvodjo June 6, 2013 at 7:09 am #

    Traitor!!!! zanu for life. Icho!!!!

  6. Coolhead June 6, 2013 at 7:14 am #

    INFORMATIVE ANALYSIS that speaks to the substance of the judgement.Maduku new the faultlines of the judgement hence his blanket principle and not words premise he was selling in the Herald yesterday.He is not getting donations for the nca that the constitution is no longer a relevant gold digging pretext hence the attempt to placate ZANU at all costs.Some observer in our column,yesterday, was alright,Maduku must freely and openly join the party.May they can donate him a house in Makokoba so that he takes up the offer to contest that Peter Ndlovu spurned.

    • lizzy June 6, 2013 at 11:15 am #

      What on earth is wrong with zimb professors?

  7. saint June 6, 2013 at 7:15 am #

    Thanks a lot Derek M for quite learned analysis.’THE PREPOSITIONS-on and after’ matter so much to come out with meaning.Did this escape the Chameleon Jonathan fLIP FLOPPER Moyo. He was at pains to try and educate the prime minister in the New Zimbabwe.choosing old terms like ‘ignoramus’ to describe him was really fraught with irregular and disrespectful tone.now Jonna look,instead natty prof you are the one who fails to see how best to bring issues to the fore.you hate, you want to put a front so that people forget or are distracted from the crimes you committed extorting money from some organization, and even cheating in zpf.Baba Jukwa can again say a lot about your treachery. Jonna boy, no sane person can believe you, not even when there is a modicum of some truth in what you say.learned fool!

  8. tiregereiwo June 6, 2013 at 7:20 am #

    Saka toita sei isu tisina mari kudai, voters roll in shambles,31 July atosvika

  9. hamadziripi June 6, 2013 at 7:26 am #

    takambozvitaura do not entertain those who wants power through back door, now the whole bench has to go, this is a disaster for our Judicial System.

  10. Lion hunter June 6, 2013 at 7:27 am #

    Its not practical to have elections by 31 july .chidyausiku ainge achidya husiku akadza kufunga those 2 judges who did not concure real chief justices not godfrey shamwari jonathan moyo who failed 2000 constitution so he is using to bench to revenge.ngasiye benji haachagona kuvenga chirungu.

  11. Revai chokwadi June 6, 2013 at 7:31 am #

    Ko zvenyu kwazvo zvamunoziva nokugona ndezvipi.changoti next door, changoti next door ivo havana ma issues avo then how do u intend to rule this country if u consult. Externals all the time. Next time u run there u will find them on holiday what wil u do. sHAME on u.

  12. Reader June 6, 2013 at 7:32 am #

    Gone are the days of Gubbay and his celebrated bench. The current profile of Chidyausiku (what does the name imply?) is embarassing, to pout it mildly.

  13. chabvonga June 6, 2013 at 7:35 am #

    why should zanu pf celebrate, the Mdc is almost through with their primary elections and zanu pf is @ zero they are not even thinking of holdind primary elections yet they aplaude that nonsensical ruling. Can’t they see they are getting lost somewhere. For sure if those old horses are contested fairly on primary elections they will all lose, that is why they are not conducting primary elections. These old evil pple are not used to democracy they always want to impose themselves on pple. Wake up zanu pf, the PM is giving you room to excercise democracy by rejecting the court ruling and you are still asleep while the sun has risen, wake up.!!!!!

    • masese June 6, 2013 at 7:54 am #

      Siya nokudyausiku udye masikati nevamwe,vusiku varoyi.

    • lizzy June 6, 2013 at 11:20 am #

      i hope they will not tell their supporters that there is no longer time for primaries and impose old horses.

  14. masese June 6, 2013 at 7:55 am #

    Siya nokudyausiku,ndezve varoyi

  15. diva June 6, 2013 at 8:05 am #

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  16. SHIBOBO June 6, 2013 at 8:44 am #

    Chidyahusiku actualy goes home, looks at himself in the mirrow and is proud of what he sees??? Lord helps us!!!!

    Maybe the impossible will happen. One day he will wake up, reccostitute is constitutional court, and advises them to issue a proper rulling. Maybe donkeys will grow horns that day!!!!

    Truly speaking, how on eartn does his conscience let him leave with this and calls himself the Learned Judge!!!!!

  17. Dzinonzwahadzirimi June 6, 2013 at 8:54 am #

    A zanunized bench plus a zanunized military and police, my foot!Add to that a zanunized prof Donemore Madhuku! Cry the Beloved Country.

  18. Matambo Silvester June 6, 2013 at 8:56 am #

    Hapana apa, masura nemaelection chete apa. Rubbish hausi judge iwe duzvi iwe.

  19. lobengula kumalo June 6, 2013 at 8:57 am #

    maduutuu. mahwa zvandakuvudzayi here pamusoro apa? moyo wangu unodzimba kuvona hudofo hwenyu ndirere hangu pano pachikomo che nharira. zuva rama erections richatarwa navakuru by july 31, saka dzikamai murege kuzvidza mutemo wedare. the court decision iyi is not ‘a fly blown piece of paper’ that u purport it to be weee. as if ndeiya rudd concession. its the real mcoy!

  20. hurungudo June 6, 2013 at 8:59 am #

    nhai sei muZimbabwe tine vanhu vari determined kuuraya nyika. if our president is a true nationalist why force an election when the system are not in place. Tingazvipiringishe here toti takasununguka

  21. k.mafirakureva June 6, 2013 at 9:20 am #

    cheaters beware people are watching,reading every line.

  22. Thabo June 6, 2013 at 10:02 am #

    Please spare us the semantic jargon crap and just give us an election,lets get this over and done with-period,does it need a rocket scientist just to have a damn election-politicians!eish

  23. Falcon June 6, 2013 at 12:11 pm #

    A couple of years ago there was one old man in Highfield in the early 70s who used to swear on everything that is holy that the best lawyer in the world was one Herbert Chitepo, followed by Edisom Sithole, then one Sawyer (of the now famous Sawyer and Mkushi). He said during the sixties if you wanted to win a case you were better served by these however if you had a death wish and wanted to lose then you used one Walter Kamba and somebody else.. This old man used to run a fired wood store (chipambureki!) so I suppose cutting firedwood illegally everywhere including the old Bacaster (where St. Peter’s and Glen Norah surburb are currently situated), his business inferred that he was in court most of the time, so we took his word as gospel. Or maybe he was just expressing an opinion, perhaps???

  24. nathaniel June 6, 2013 at 12:46 pm #

    I suggest that for now we do not bully these chaps from the judiciary since most if not all of them were appointed to the bench fully aware that they only have to dance to zpf songs and drums.Anyone knew here what they would fully have to contend with,zpf directives.Also I am of the opinion that we pile pressure on the party leaders to keep their foot down on the accelerator at the Maputo meeting .Reforms to take us to an election where only one party in Zimbabwe,zpf will not be happy with its out come.Zpf in a free and fair environment goes to archives,that they know.This is not because Save will win this election, but because the majority of Zimbabweans want change,

  25. true son of the soil June 6, 2013 at 12:57 pm #

    IF YOU EXPECTED AN UNBIASED JUDGEMENT FROM THESE ZANU PF JUDGES, THEN THE JOKE IS ON YOU

  26. Dhewa Venevenyika June 6, 2013 at 2:17 pm #

    With a certainty of 0.8 the giant wheel called fate is surely sending zanu pf tumbling down to the low ebb throwing them off balance in the process.They are holding hard onto the wheel but this is so powerful and forceful that they will not survive the jolt.Emerging from the other side and approaching the apex are the people of zimbabwe who for more than 3 decades have been held hostage by these scums of the earth, all in the name ” takakusungurai” This rhetoric can never appeal to those 40 yrs and under because they dont even understand what the so called kusunungurwa means, but will undetstand someone who talks JUICE, bread and butter issues, not some crookish empowerment talk that seeks to further perpetuate the masses’ bondage and sugfering as these hyenas continue to feast on our natural resources.Whateva zanu pf is touching nowadays gets rotten,like this recent concourt judgement where the indebted thief justice rewrote the constitution by inserting a semi colon which parliament never sanctioned.

    • Tendai Mbiti June 6, 2013 at 2:34 pm #

      Saka tatovharwa ne semi-colon? Inga ibasa…

  27. chaminuka June 6, 2013 at 2:30 pm #

    @Matyszak’s thanks for opening our brains towards the zanu pf thugs who think they can impose wat they want changing laws

  28. Dzvinyangoma June 6, 2013 at 5:57 pm #

    Unfortunately this remains academic. Chidyausiku and the 6 other judges agreed on their interpretation of the sections of the constitution and 2 others dissented for different reasons. This in itself means for years to come different legal minds will interpret these sections differently. There is nothing to celebrate about this Polish guy’s interpretation of our constitution because it’s just his own interpretation. It will not change the judgement . If we could afford to make all the people with an opinion on how the sections of the constitution must be interpreted judges we would but, unfortunately we can only have a few at any given time.

    We should blame it on those who drafted the constitution for coming up with such an ambiguous section.

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