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Polls can’t be postponed, top lawyer joins delimitation report challenge



A TOP Harare lawyer, Jeremiah Bamu, has joined the Constitutional Court legal contest in which MDC leader Douglas Mwonzora is seeking nullification of  the Zimbabwe Electoral Commission  (ZEC) delimitation report.

Bamu joined the litigation as amicus curiae (friend of the court) and will be focusing on assisting the court with information or advice regarding questions of law or fact as an interested party.

His admission to the proceedings follows a successful request in which he highlighted that he is opposed to Mwonzora’s prayer that if the delimitation report is nullified, President Emmerson Mnangagwa’s election proclamation should be delayed by six months and be conducted after the exercise is done afresh.

A three-member panel  bench chaired by Justice Anne Mary Gowora said his request is acceptable.

“It being in the interests of justice for the applicant (Bamu) to be admitted as amicus curiae it is ordered that the application is granted,” said Gorowa.

“Applicant be and is hereby admitted as amicus curiae in CCZ 20/2023. Applicant to file submissions by 18:00 on 4 May 2023.”

Added the judge: “In terms of rule 10(4) applicant is to only advance submissions per para 20-39 of founding affidavit.”

Among other things, in these paragraphs Bamu said if admitted as amicus curiae, he intends to take the position that the holding of general elections in Zimbabwe during the year 2023 and upon the expiration of a five-year term reckoned from the date of swearing-in of the current President on 26 August 2018 is a constitutional imperative which may not be dispensed with.

“An order prohibiting the proclamation of election dates as is sought by the applicants would therefore be constitutionally repugnant.

“I would thus urge the court by way of submissions, a summary of which is made below, not to grant the relief which would result in general elections proceeding long after the expiry of the five-year term commencing from the date of the wearing in of the President in 2018.”
Bamu said five-year term-limits are an important constitutional imposition which should not be derogated from.

“The constitution places term limits and requires regular elections for local authorities, members of the National Assembly, members of the Senate and on the President and Vice-President as a way of ensuring accountability in government,” he said.

“This is done as an absolute requirement for a well-functioning constitutional democracy.

“The application is extraordinary in that applicant requests the Constitutional Court to permit the breach of unequivocal constitutional obligations. This is the making of a constitutional crisis.”

The lawyer also said the submissions that he intends to advance will cover aspects that have not been fully traversed by the parties to these proceedings in their affidavits.

“Should it turn out that some of the issues are covered in the heads of argument, I will not repeat these submissions at the hearing of the matter.

“I wish to specifically focus on the ultimate question whether the Constitutional Court can be requested to make an order that would effectively amend the constitution by prolonging the life of local authorities, Parliament, and the Presidency to a period longer than the five-year term envisaged by section 158 of the constitution.”

He said section 158 fixes the time for the holding of general elections to “thirty days before the expiry of the five-year period specified in section 143” unless Parliament has either passed resolutions to dissolve, or where Parliament is dissolved, consequent to a vote of no confidence in which case a general election must be held 90 days after the dissolution.

This means a general election is triggered by the inevitable passage of time, specifically the lapsing of a five-year period commencing from the date of swearing-in of the President-elect.
Court said respondents, who include Mnangagwa, Zec and Justice minister Ziyambi Ziyambi may respond to amicus if they choose by noon of 5 May 2023.

“Subject to further directions which may be issued by the court the applicant’s oral submissions will be confined to the substance of their written submissions filed in advance.”

There was no order as to costs and  full reasons are expected to follow.

The main application by Mwonzora will be heard on 8 May. The court’s ruling will determine whether elections will be delayed or not.

Bamu said he is interested because he is a registered voter.

“The applicant (Bamu) is a registered voter with an intention to vote during the 2023 general elections. The applicant bears an interest in the proceedings as they concern proper delimitation of the electoral boundaries and the potential prohibition against proclamation of the dates for the 2023 general elections.

“The applicant intends, as amicus curiae, to make submissions which will be useful and different from those of the parties on matters to be determined by this court,” reads his application filed through Maunga Maanda and Associates.

Simply put, Bamu is challenging the postponement of the general election.
In his founding affidavit, Bamu said given the peculiar circumstances, and the urgency of the main matter, he ought to be heard.

He said the holding of elections this year should not be tampered with as it is in accordance with the law.

“Should I be admitted as amicus curiae, I intend to take the position that the holding of general elections in Zimbabwe during the year 2023 and upon the expiration of a five-year term reckoned from the date of swearing in of the current President on August 26 2018 is a constitutional imperative which may not be dispensed with, ” he said.

Mwonzora is confident that his request will sail through insisting that the delimitation exercise was wrongly done. Critics including exiled former cabinet minister Jonathan Moyo feel that he will not win due to technical errors.

“The fact that Zanu PF has virtually completed its primary elections and that CCC is about to complete its stalled candidate selection process, both based on new electoral boundaries, makes it unlikely that the ZEC delimitation report will be set aside. More likely, praxis will prevail over theory to avoid chaos.

“But in the event that the delimitation report is set aside, it is difficult to see why and how the Court would grant Mwonzora’s prayer that the election proclamation should only be made after ZEC has redone the delimitation report.

“This expectation might explain  why through its proxy, CCC has opportunistically made an eleventh-hour application to basically argue against postponement of the election. It’s a winning argument, almost guaranteed,” Moyo said. — STAFF WRITER.

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