In another court victory that has been made meaningless by the delay in hearing the case, the Supreme Court this afternoon dismissed President Robert Mugabe’s appeal against a High Court decision directing him to gazette a date for by-elections to be conducted in three parliamentary constituencies in Matabeleland Provinces.
The other case which threatens to become academic is MDC President Tsvangirai suing Mugabe for illegally appointing Governors three years ago.
President Mugabe had appealed against Justice Nicholas Ndou’s decision in October 2011 ordering him to ensure by-elections for Nkayi South, Bulilima East and Lupane East were held, as they were constitutionally long overdue.
But today Chief Justice Godfrey Chidyausiku handed down the operative part of a unanimous judgment of the Constitutional Court (the order) dismissing President Mugabe’s appeal and ordering him to publish in the Government Gazette “a notice ordering new elections to fill the vacancies as soon as possible but by no later than 30 August 2012.
Chief Justice Chidyausiku, Judges of Appeal Vernanda Ziyambi, Paddington Garwe, Anne-Mary Gowora and Acting Judge of Appeal Yunus Omerjee heard the appeal whilst sitting as a Constitutional Court on 5 July 2012.
Former MDC-splinter group Members of Parliament Abednico Bhebhe, Njabuliso Mguni and Norman Mpofu brought the case to court after their parliamentary membership was terminated following their suspension and subsequent expulsion from the party in 2010.
They intended to run for their seats either as independents or as members of the main MDC party. The Parliamentary term is almost over and both the MPsand their constituencies have been irreparably deprived of their rights to be represented and to represent.
Although it was never brought up in the court case, the Elephant in The Room was the fear that President Mugabe's Zanu (PF) feared to lose those seats to the MDC, so it wanted to scuttle the bi-election. In this it succeeded.
Chief Justice Chidyausiku said the Constitutional Court unanimously agreed that the language in Section 39 of the Electoral Act was explicit and did not confer any discretion on President Mugabe not to comply with the Act.
Bhebhe, Mguni and Mpofu were represented by Zimbabwe Lawyers for Human Rights member, Ndabezinhle Mazibuko, of Calderwood Bryce Hendrie & Partners Legal Practitioners, while President Mugabe was represented by Advocate Ray Goba, who was instructed by the Civil Division of the Attorney General’s office. For a deeper analysis of how the victory has been made meaningles.