LAWYERS representing the opposition Labour, Economists, and African Democrats (Lead) have applied for set down at the High Court in a matter in which the political party is seeking an order declaring unconstitutional the government’s action which resulted in the conduct of provincial council elections being modified by a statutory instrument issued by Justice minister Ziyambi Ziyambi (pictured) last month.
The government issued Statutory Instrument (SI) 114 of 2023 on the Statute Law Compilation and Revision (Correction of Constitution of Zimbabwe Amendment No. 2. Act 2021) just before the Nomination Court convened on 21 June 2023, to correct and amend section 268 of the Zimbabwean constitution.
Harare lawyer Paidamoyo Saurombe of the Zimbabwe Lawyers for Human Rights (ZLHR), who is representing Lead, confirmed to The NewsHawks that last Friday the matter was struck off the urgent chamber applications roll at the High Court, but was now moving forward.
“So, we went back on Friday and the matter was removed from the roll of urgent matters. The judge found that our client did not have any candidates for Parliament so the matter could be heard on the normal roll. We are setting the matter down. We have already applied for set down,” he said.
Asked whether the case could become a turning point in the countdown to the 23 August elections, Saurombe reiterated that their case is solid enough to get a favourable judgement.
“We do have a constitutional argument that we believe is strong and is valid,” he said.
The amended section 268 of the constitution, which has resulted in the court case, stipulated that each province or metropolitan province must have a council, and that 10 women must be elected to those positions under a proportional representation system, thus excluding men.
However, through SI 114 which was effected this month, both men and female candidates can be nominated on the political party lists for the 10 positions. Section 268 of the constitution has been in effect for two years.
Lawyers are arguing that the correction made by the government is unconstitutional because a law affecting an election cannot be made once an election proclamation date has been announced.
In this case, the election date was announced on 31 May 2023, but the amendment was on 20 June.
Other opposition parties have already pointed out that the Zanu PF government enacted SI 114 of 2023 in order to benefit its candidates as the ruling party had ignored the constitutional amendment and utilised the zebra system to nominate male and female candidates for the 10 provincial or metropolitan council seats.
Following the publication of SI 114, the Zimbabwe Electoral Commission published a Press release on 21 June 2023 alerting political parties that they can proceed with nominating both female and male candidates for provincial or metropolitan council seats, which they went on to do.
Saurombe said Ziyambi breached the constitution by using the SI to amend the constitution.
“The court ruled that the speaker of Parliament be joined to the proceedings. The minister has no power to make the amendments that he did using an SI. He has to go back to Parliament. Even if the minister could make those amendments, they cannot be implemented in this upcoming election because the date has already been proclaimed,” he said.
“The constitutional provision being amended makes it very clear that the provision should be effected through an Act of Parliament, hence amended or not the provision cannot be effected for this upcoming election as it is not in any Act of Parliament as provided for in the constitution,” he said.
Before the court case, lawyers, including the attorney for the opposition Citizens’ Coalition for Change (CCC), David Coltart, had taken to social media to blast the move. Coltart said SI 144 demonstrated “gross ineptitude” by the Zanu PF regime and was also “thoroughly illegal.”
“One cannot just amend a constitutional provision which has been in place for almost two years, on the day before nomination day, or at any time. It’s utterly bizarre,” he said on Twitter.
Coltart noted that any nominations of male candidates which follow “this illegal SI” are equally “illegal and of no force.”
“The new constitutional provisions, sections 268 and 269, bad as they are, state all the candidates must be women. A mere SI can’t change that,” he said, lamenting the constitutional violation.
“No doubt Zec will again ignore this brazen breach of the constitution. But how incompetent is it for someone to wake up on the eve of an election to ‘correct’ an ‘error’ in the constitution which was published almost two years ago? The bumbling is breath-taking.”
Another lawyer, Tendai Biti, said a constitution cannot be amended by a statutory instrument and even assuming an error was made recording the amendments made in the National Assembly. He argued that the Senate debated and adopted that erroneous position, which the President signed into law.
“Under such circumstances, only a constitutional amendment can undo the original position. Besides, a law affecting an election cannot be made once an election proclamation has been made. This is therefore a scandalous mongrel’s breakfast, but one which not many mongrels will touch,” Biti said.