CCZ 01-13 - MAWAWIRE v MUGABE N.O. & 4 ORS

JEALOUSY MBIZVO MAWARIRE

v

(1) ROBERT GABRIEL MUGABE N.O.

(2) MORGAN RICHARD TSVANGIRAI N.O.

(3) ARTHUR GUSENI OLIVER MUTAMBARA N.O.

(4) WELSHMAN NCUBE

(5) THE ATTORNEY-GENERAL

CONSTITUTIONAL COURT OF ZIMBABWE

CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GARWE JA, GOWORA JA, PATEL JA, HLATSHWAYO JA, CHIWESHE AJA & GUVAVA AJA

HARARE, MAY 24 & 31, 2013

J Mandizha, for the applicant

T Hussein, for the first respondent

Adv Uriri, for the second respondent

Adv T. Mpofu, for the fourth respondent

No appearance for the third and fifth respondents

 

CHIDYAUSIKU CJ:  This is an application brought under s 24(1) of the Constitution of Zimbabwe (hereinafter "the Constitution") on the basis that the applicant's rights enshrined in ss18(1) and 18(1a) have been contravened.

The Parties

The applicant is a citizen of Zimbabwe domiciled in this country and has always regarded this country as his only and permanent home. He is a registered voter in Zaka East Parliamentary Constituency and also a member of the non-governmental organisation, the Centre for Election Democracy in Southern Africa, based in Harare.

The first respondent is the President of Zimbabwe, Robert Gabriel Mugabe, who is cited in his official capacity and as the office-bearer responsible for fixing the date for Parliamentary, Presidential and local authority elections (hereinafter called "the harmonised elections"). He is also cited in his capacity as a principal of the Inter-Party Political Agreement (commonly referred to as the Global Political Agreement ("GPA") between his political party, the Zimbabwe African National Union (Patriotic Front) ("ZANU-PF") and the two formations of the Movement for Democratic Change ("MDC"), referred to in Schedule 8 to the Constitution.

The second respondent is Morgan Richard Tsvangirai, who has been cited in his capacity as the Prime Minister of Zimbabwe, who also is a signatory to the "GPA", representing his formation of the MDC.

The third respondent is Arthur Guseni Oliver Mutambara, who has been cited as the Deputy Prime Minister of Zimbabwe and also due to the fact that he is a signatory to the "GPA".

The fourth respondent is Welshman Ncube, a Minister in Government and cited herein in his capacity as the representative of the other formation of the MDC, which organisation is a party to the GPA and is represented in the current coalition government.

The fifth respondent is the Attorney-General, who has been drawn into these proceedings in view of their constitutional nature and in his capacity as the principal legal advisor to the Government.

Background

On 2 May 2013 the applicant issued an urgent Court application against the above five respondents. Before any opposition was filed to the court application, the applicant was, on 6 May 2013, directed by the Registrar of the Supreme Court of Zimbabwe to file a separate urgent Chamber application seeking leave for the urgent hearing of his Court application, if such was his wish.

The application proceeded to do so in case Number SC 157/2013. This urgent Chamber application was subsequently heard on 15 May 2013. On 17 May 2013 the order sought by the applicant in the urgent Chamber application was granted.

The principal application was opposed by the first, second and fourth respondents.

The applicant subsequently filed a replying affidavit as well as a notice of an amendment of the draft order to his principal application.

The amended order sought is as follows:

"(1)    The First Respondent be and is hereby directed to forthwith proclaim an election date for a Presidential election, general election and elections for members of the governing bodies of local authorities in terms of section 58(1) of the Constitution of Zimbabwe.

(2)     The elections referred to in paragraph 1 hereof shall be conducted no later than the 30th day of June 2013.

ALTERNATIVELY

The elections referred to above shall be conducted no later than (the) 25th day of July 2013.

(3)     Any party (parties) who oppose(s) this application shall bear the costs of this suit jointly and severally, the one paying the other to be absolved."

Read together, the papers filed of record seem to pose the following as issues which fall for determination -

(a)     Whether the applicant has locus standi to approach this Court in terms of s 24(1) of the Constitution of Zimbabwe;

(b)     When do harmonised general elections fall due in terms of the laws of Zimbabwe?

(c)     Whether the applicant has made out a case for the order sought.

Each issue will now be dealt with in turn.

2013

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