1. ‘A critical analysis of the advent of judicialisation of politics in light of
Jealousy Mbizvo Mawarire v Robert Mugabe N.O. & Others CCZ 1/13’
BY
GAVIN GOMWE
2014
A DISSERTATION SUBMITTED IN PARTIAL FULFILLMENT OF THE
BACHELOR OF LAWS (HONOURS) DEGREE [LL.B. HONS.]
SUPERVISOR: PROFESSOR L. MADHUKU
UNIVERSITY OF ZIMBABWE
FACULTY OF LAW
JUNE 2014

2. DEDICATION
__________________________________________________________________
I dedicate this momentous work to my parents, Bishops Mama & Baba Gomwe,
when one’s parents are able to see the vision well ahead of its time, it makes its
eventual fruition that much sweeter. Much thanks to dad for the patience,
running around and massive material support and mom for the constant
encouragement and prayers in what was an arduous journey.
My brother Gibson, for epitomising what an older brother should be like –
financial support, encouragement, inspiration. We dreamt of moments like this
when we were just boys. It is here.
Vanessa and Tatenda. The family has another graduate. Over to you.
It would be remiss not to conclude by thanking the Lord Almighty. Abba
Father.
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3. ACKNOWLEDGEMENTS
• Professor Madhuku my supervisor, this was not a crystal clear area of
the law, rather than discourage and put me off doing it, gave me the
green light to pursue it to its logical end.
• Musa Kika, for the insights at the tricky detailed proposal stage, and the
useful material.
• Abednigo Ndebele, an honour to have walked this road with such a
seasoned, battle hardened Provincial Magistrate. We shall surely meet
again in the courtroom.
• Dorothy Pasipanodya, that innate ability of yours to make me
temporarily suspend all manner of belief in mortality & push me beyond
my limits.
• Yassin Nhara, the friendship may have been birthed in the twilight years
of law school, but it shall surely be a friendship for life.
• Tichaona Nyamucherera, great friend, ridiculously cheerful.
• Ashton Makore, the jokes, but more crucially, the huge amount of time
we did not realise we spent in legal combat during exam time.
• Nyasha Savala, the complete companion, you stuck around even during
my dreaded phases of madness, but more importantly, took time to
know me even better than I know myself.
• And rather grotesquely, I salute one Gavin Gomwe, the ridiculous hours
spent idolising judges from across the world, the Grisham novels, you
were the source of inspiration, and boy oh boy, will you make one hell of
a lawyer!
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4. TABLE OF CONTENTS
1. INTRODUCTION PAGES
1.1 Background and brief summary of the study 6 -
10
1.2 Statement of the problem 10 -
11
1.3 Significance of the study 11
1.4 Research Methodology 12
1.5 Summary of contents 12 -
13
2. OVERVIEW OF JUDICIALISATION OF POLITICS
2.1 Definition 14
2.2 Traditional approach of courts to political questions 14 -
15
2.3 Advent of judicialisation of politics 16 -
17
2.4 Conclusion 17
3. OVERVIEW OF THE APPROACH OF THE COURTS TO
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5. POLITICAL MATTERS
3.1 Introduction 17
3.2 Overview of cases 1 9 -
24
3.3 Conclusion 24
4. THE MAWARIRE JUDGMENT: BACKGROUND, ANALYSIS
4.1 Background 25 -
27
4.2 The Judgment 27
4.2.1 The Facts of the case 27 - 28
4.2.2 Issues that fell for determination 28 -29
4.3 The Outcome 2 9 -
30
4.4 Majority Judgment 30
4.4.1 Analysis 30 - 41
4.5 The Minority Judgments 41
4.5.1 Analysis 41 - 44
4.6 Conclusion 44
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6. 5. AFTERMATH OF THE CONSTITUTIONAL COURT JUDGMENT
5.1 Introduction 45
5.2 Significance of court approach in Mawarire case 45 -
47
5.3 Overview of select cases after the Mawarire Judgment 47 -
50
5.4 Comparative analysis of judicialisation of politics in other 51
Jurisdictions
5.4.1 South Africa 51 - 55
5.4.2 Canada 55 - 57
5.4.3 United States of America 57 - 59
5.5 Conclusion 59 -
60
6. CONCLUSION AND RECOMMENDATIONS
6.1 Introduction 61
6.2 Recommendations 61 -
65
6.3 Final Conclusion 65
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7. CHAPTER ONE
INTRODUCTION
1.1 Background and brief summary of the study
The expression 'judicialisation of politics' refers to the reliance on courts and
judicial means for addressing core moral predicaments, public policy questions
and political controversies. It is on the latter part of this definition, political
controversies,that this dissertation hinges. Judicialisation of politics thus
entails the expansion of judicial power well beyond adjudication in purely
orthodox means to embrace the core of politics and governmental policy.
Our courts have traditionally taken the position of being unwilling to take up
highly politically charged cases - apt instances include the refusal to take up
Morgan Tsvangirai's 2002 Presidential Election results challenge in the case of
Tsvangirai v Mugabe & Another, that ironically is still languishing at the
Supreme Court on a preliminary point and recently in the case of Mutambara v
Ncube, a case that had a direct bearing on Professor Arthur Mutambara's
standing as Deputy Prime Minister, in which the Supreme Court reserved
judgment indefinitely until Mutambabara withdrew his appeal after the
dissolution if the Government of National Unity ('GNU') citing the fact that the
matter had been overtaken by events. This position is best encapsulated by
remarks made by High Court Judge Chinembiri Bhunu at the opening of the
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8. High Court's 2006 Masvingo Circuit wherein the learned judge said,
It is, therefore, necessary to remind everyone concerned at this juncture that the
courts are neutral arbiters. They are neither for nor against anyone. The courts
will not help spring anyone into power nor help anyone to remain in power. Those
who desire political office must go to the people and not the courts. ' (my
emphasis)1
This is an important background as the judges seized with this matter in the
newly formed Constitutional Court ('ConCourt') were not fresh judicial
appointees. In fact, a week before the hearing, the Supreme Court, sitting as a
full bench of Chidyausiku CJ, Ziyambi, Garwe, Gowora, Omerjee JJA in
Chombo v Parliament of Zimbabwe & Others2
declined to grant permission
to an MDC T MP Tangwara Matimba to introduce a Private Member's Bill that
sought to make amendments to the Urban Councils Act that would have
dramatically watered down the extensive powers bestowed on central
government through the Minister of Local Government, Rural and Urban
Development over municipal and town councils reasoning that it was not
prepared to ‘upset the inclusivity of decisions’ in the Government of National
Unity.
The courts yet again in refusing upset the political 'apple cart' so to speak had
stuck to norm. The advent of judicialisation of politics in our country as
reflected by Jealousy Mbizvo Mawarire v Robert Mugabe N.O. & Others,
which forms the subject matter of this dissertation thus presents an about turn
1
'Judiciary only interprets the law': Justice Chinembiri Ernest Bhunu
February 15, 2006
http://www.herald.co.zw/inside.aspx?sectid=523&livedate=2/15/2006%2012:00:00%20AM&cat=10
2
SC 107/12
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9. by our courts that are seemingly now willing to be players in settling our
nations' political controversies. Such a development merits discussion and
scrutiny. In casu, the issue before the Court was to determine the chronological
parameters mandated by the Constitution following the dissolution of
Parliament. The matter was the result of a urgent chamber application by a
private citizen, one Mr Jealousy Mawarire, whose claim was based on the fact
that the President was constitutionally obligated to set the dates for
Zimbabwe's next general election no later than the 29th of June 2013, which
was the day Parliament reached its constitutionally prescribed five year term.
What perhaps made this particular case and its concomitant judgment
fascinating, save for the extraordinary relief sought and subsequently granted,
was the fact that where the Supreme Court in the Chombo case (supra) was
unwilling to upset the ‘inclusivity of decisions’ of the those in the Government
of National Unity ('GNU'), which in essence was what the issue of election
dates boiled down to, viz. an agreement from all three Principals to the GNU as
to what would be the appropriate date for calling of an election. The ConCourt
sitting for the first time makes an about turn from previous court policy
alluded to above with regards to highly sensitive political matters, abrogating to
itself the task of resolving this crucial political question of election dates.
Furthermore, Chidyausiku CJ, who penned the majority judgment, embarked
on a wholesale use legal sophistry to arrive at what was, with respect, an
incorrect judgment. The lack of legal soundness of the judgment will be
explored in greater detail in the course of the dissertation but the point that is
to be made at this juncture is the manner in which this judgment was arrived
at, coupled with the Chidyausiku led Supreme Court’s history insofar as its
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10. interaction with the executive was concerned, opened the court to issues of
conjecture and speculation regarding its ability to be a neutral arbiter.
This is so when the following is taken into cognisance:
• President Robert Mugabe had repeatedly underscored his desire to hold
general elections after the passage of the new constitution into law on
the 22nd of May 2013, which ran counter to the wishes of fellow
partners in the GNU, the two MDC Formations, who insisted that
general elections could only be held, at the latest, constitutionally, on
the 29th of October 2013. As such the drastic relief sought by the
applicant seemed to fit very conveniently with the President's desire to
have an early poll. As such the President, who was the First Respondent
in this matter, unsuprisingly wholeheartedly agreed with the Applicant's
contention, posing instead a shallow defence thus creating the distinct
impression that his wishes of an early poll were covered in a judicial
cloak. It does not help matters that the judges in this matter still carried
the taint of the highly controversial land judgments that eroded any
semblance of judicial independence from political influence.
There was also need at the very least, for the applicant to show that he was a
registered voter, in the constituency he claimed and also disclosed where and
when he registered. The absence of an enquiry into applicant's qualification as
a voter in a case whose relief was going to radically alter the constitutional
trajectory of the nation seems almost self - defeating.
The court proceeded to make an order directing the President to call for an
election on or before July 31 based on what can best be described as a
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11. misconstruction of the straightforward import of section 58(1) of the Old
Constitution .
The hallmark of this decision can best be summed as, albeit unintended,
paving the way for judicialisation of politics in this country. Judges are, if this
case is anything to go by, readily stepping into the political limelight and
settling political questions that befuddle a democracy like ours.
1.2 Statement of the problem
This study was prompted by the need to define and analyse the practice of
judicialisation of politics, which is fast becoming a global phenomenon, that
has manifested itself in our jurisdiction, as reflected by the judgment that
forms the focal point of this study. Judicialisation of politics is not something
that has arisen overnight but has been there for quite some time in
jurisdictions across the world such as the United States of America, England,
closer to home in South Africa, just to name but a few. The point that is sought
to be driven home is judicialisation of politics has varying results in different
jurisdictions. A strong, independent judiciary operating with a fair measure of
institutional legitimacy may be best suited for such a role – however a wholly
dependant and weak judiciary, struggling with a tarnished image, risks losing
what semblance of integrity it has left by taking up such a role.
It is precisely in this latter aspect that our judiciary falls, and given the fact
that there is a general belief that we no longer have an independent judiciary
coupled with the suspicions alluded to above surrounding the Mawarire case
itself, it falls for determination in this study whether the advent of
judicialisation of politics in Zimbabwe at this juncture is a welcome
development that is worth embracing.
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12. 1.3 Significance of the study
This study seeks to give a lucid analysis of judicialisation of politics, whose
presence became, albeit unintentionally, felt in our jurisdiction in the Mawarire
case that will be the reference point of this study. Through an evaluation of its
impact in different jurisdictions, this study will seek to impress upon whether it
is a worthwhile development that will benefit our judiciary or should be
discouraged. The study encourages rigorous debate on this new development in
our jurisdiction and puts forward academic arguments that have been put
forward by scholars on this area.
Theoretical Value: This dissertation will contribute to an understanding of
what judicialisation of politics entails, given it is a new development in our
jurisdiction, and will point to its varying degrees of acceptance or lack thereof
in the different jurisdictions that will be referred to. It thus will allow for an
informed take on whether such development in our jurisdiction is positive or
negative.
Delimitation: This dissertation will focus on scholarly articles penned on the
area of judicialisation of politics by various scholars coupled with the case law
revolving around the Mawarire judgment. The major statute that will be
referred to is the Lancaster House Constitution of Zimbabwe which has since
been super seeded by Amendment 20 to same that ushered in the New
Constitution of Zimbabwe.
1.4 Research Methodology
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13. • This dissertation will primarily be based on desktop as make ample use
of literature sources such as the statutes, case law and scholarly articles
that have been penned internationally.
• Perspectives gleaned from all these sources will recur throughout the
dissertation and should not be treated as separate findings save for
where the writer expressly states so.
1.5 Summary of contents
• This study will consist of six chapters.
• Chapter one will give a background and summary of the study,
significance of the study and will deal with the primary issues.
• Chapter two will give an overview of the practice of judicialisation of
politics.
• Chapter three will give a background to the approach our courts have
taken to political matters and their interaction with the Executive,
paying particular attention to the current bench which will serve as a
useful background to the case that forms the focal point of this
dissertation.
• Chapter four will give the background to and critically analyse the
Mawarire judgment, its majority and minority opinions and come to a
balanced assessment of its legal soundness or lack of.
• Chapter five will discuss and analyse the aftermath of the judgment
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14. paying particular attention to its bringing to the fore judicialisation of
politics and will also in so doing give a jurisdictional comparison of
countries that have adopted the practice in question.
• The final chapter will provide an evaluation of whether Zimbabwe is best
equipped, in spite of the growing popularity of judicialisation of politics,
and in light of the current state of our judiciary, to adopt such a practice
and will proffer recommendations.
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15. CHAPTER TWO
OVERVIEW OF JUDICIALISATION OF POLITICS
‘it was a typical situation of gold going rusty to the utter amazement of
hardwood. Here was a case in which one of the problems that many less –
established democracies grappled with on an ongoing basis knocked
audaciously at the door of the world’s most advanced system & practitioner’3
Basil Ugochukwu on Bush v Gore
2.1 Definition
Judicialisation of politics is not a term that belies easy definition because more
importantly, there is no plain and simple answer to the question ‘what is
political?’ and as such there is no plain and simple definition of judicialisation
of politics. Be that as it may, it has generally been accepted that it refers to the
growing reliance on the courts and judicial means for addressing core moral
predicaments, public policy questions and more often than not, political
controversies. As such under such practice judicial power is expanded well
beyond adjudication in purely orthodox terms, but instead embraces the core of
politics and governmental policy.
2.2 Traditional approach of courts to political questions
3
Ugochukwu, B ‘The Pathology of Judicialization: Politics, Corruption and the Courts in Nigeria’ The
Law and Development Review: Vol 4: No.3, Article
4http://www.osgoode.yorku.ca/sites/default/files/research/Ugochukwu%20-%20LDR%20Article.pdf
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16. Politics was traditionally thought to be a game for politicians alone and political
questions were best resolved politically rather than considered issues for the
courts. The main reason behind this was political questions had a significant
effect on governmental policy and as such any policy dilemmas that would
result from tackling of said political questions was better resolved from
politically accountable branches of government and as such the courts were
inappropriate forums to decide on such cases. Indeed, in the famous United
States of America Supreme Court case on political questions of Baker v Carr4
,
the court pointed out that rendering a judicial decision involving a political
question would antagonize separation of powers principles. Among the reasons
proffered by the court were, inter alia:
• The impossibility of a court undertaking on reaching an independent
resolution without expressing lack of respect that is due to other
branches of government
• The likelihood of embarrassment stemming from multifarious
pronouncements by various departments on one question.
Furthermore, compelling reasons have been advanced for past reluctance to
allow courts to adjudicate over political controversies. As Ron Hirschl5
notes,
adjudicating such matters is an inherently and substantively political exercise
that extends beyond the application of rights provisions or basic procedural
justice norms to various public policy realms6
. Where there are pressing
political questions involving very high political stakes for the nation there may
be little or no constitutional guidelines and as such court intervention may be
4
(1962) 369 U.S. 186
5
Hirschl, R ‘Judicialization of Politics’ The Oxford Handbook of Law and Politics
http://qr.jur.lu.se/Quickplace/juan02/Main.nsf/0/7BA763D5DCA73F3CC1257C1C00318397/
$file/hirschl.pdf
6
At 3
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17. viewed as inappropriate, the populace seemingly being best suited to
contemplate and decide such matters through its elected and accountable
representatives.
2.3 Advent of judicialisation of politics
The anxiety of the courts to settle political questions as expressed in the above
sentiments has however subsided over time. The advent of judicialisation of
politics has not only seen the courts adjudicate and settle political questions
but it now also includes the wholesale transfer to the courts some of the most
pertinent and polemical political controversies a democratic polity can
contemplate7
, an apt instance being the United States Supreme Court for the
first time in its history on November 12, 2000 giving the final decision on who
was to be President of that country. It has been said that the phenomenon of
judicialised politics under the guise of adjudication continues to penetrate legal
regimes across the world8
J. Ferejohn9
has identified three main ways courts have taken on new political
roles which were more synonymous with the more political arms of
government. Firstly is the willingness and ability of the courts to limit and
regulate the exercise of Parliamentary authority by imposing substantive limits
on the power of Legislative institutions. Secondly the courts are places where
substantive policy is made and lastly, crucially, courts have shown enthusiasm
in regulating political activity itself. This latter aspect will be paid particular
7
Hirschl, R ‘The New Constitution and the Judicialization of Pure Politics Worldwide’ 75 Fordham
Law Review, 721 (2006)
8
Ugochukwu, B ‘The Pathology of Judicialization: Politics, Corruption and the Courts in Nigeria’ The
Law and Development Review: Vol 4: No.3, Article
9
Ferejohn J, ‘Judicialising Politics, Politicizing Law’, 65 Law & Contemp. Probs. 41 (2002)
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18. attention to for the purposes of this study.
An obvious question that may arise though is how does a political question find
its way into a court of law? How would the would be litigant establish locus
standi? Invariably, the political questions are framed as constitutional issues.
This is bearing in the mind the fact that the court possesses an inherent
judicial review power. For example in the Mawarire judgment that forms the
focal point of this study, the court was, from a simplistic standpoint, being
asked to set an election date by the applicant, which was a political decision
that fell under the purview of the President. But for purposes of the case, the
Court tackled the case as a constitutional application in which the court was
seized with interpreting section 58(1) of the Lancaster House Constitution of
Zimbabwe.
2.4 Conclusion
In conclusion it is evident that under judicialisation of politics, political
questions are deemed considered issues for determination by courts of law. In a
thriving democracy that boasts a strong and independent judiciary, the use of
the courts to settle political stalemates certainly may aid national progress. The
converse of this may not however hold true.
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19. CHAPTER THREE
OVERVIEW OF THE APPROACH OF THE COURTS TO POLITICAL MATTERS
‘those of us on the bench do not concern ourselves with fireside stories, but facts.
Facts and the law’10
G.C. Chidyausiku, Chief Justice.
3.1 Introduction
The appointment of current Chief Justice Godfrey Chidyausiku was an
inglorious one that came in the aftermath of the forced retirement of former
Chief Justice Anthony Gubbay after the Government had taken the decision to
reconstitute the Supreme Court and appoint judges perceived to be
sympathetic to its cause after the fast track land acquisition and resettlement
programme gathered pace. Our courts since then under the Chidyausiku CJ
led Supreme Court have deliberately taken a ‘hands off’ approach with regards
to highly politically charged cases, coupled with demonstrating a tendency in
high profile and electoral cases to lend its process to the service of the State. In
cases challenging the constitutionality or legitimacy of measures that are
clearly in violation of the law the Supreme Court has departed from established
legal principle in order to legitimate executive action. This has left one with the
10
Chinyoka T, ‘My dissent in Jealousy Mawarire vs Robert Mugabe’
http://nehandaradio.com/2013/06/07/my-dissent-in-jealousy-mawarire-vs-robert-mugabe-tino-chinyoka/
19 | P a g e

20. uncomfortable feeling that judicial independence at this point in time exists
solely at the whims of the Executive.
3.2 Overview of cases
The inclination particularly by the Chidyausiku CJ led Supreme Court has
been to avoid highly politically charged cases. This has been subtly interwoven
with a tendency to side with the Executive in such high profile cases and
electoral cases. In Tsvangirai v Registrar General of Elections & Ors11
Morgan Tsvangirai, the leader of the opposition, was standing in the
Presidential Election against President Mugabe. The President just prior to the
election passed a raft of measures purpoting to drastically alter the election
laws (when ironically he was a candidate in that very election) and Tsvangirai
sought to challenge the legality of these measures. Chidyausiku CJ handing
down the judgment of the majority ducked the issue by making a finding that
Morgan Tsvangirai had no locus standi to bring the application, starting a
familiar pattern by the courts of not ruling against the Executive in cases of
that nature.
Tsvangirai’s Presidential Election (March 2002) Challenge served as a the
stiffest credibility test for our nation’s electoral process, but more importantly
would have gone some way in showing that the judges would not follow the
pattern of towing the line of the executive in cases of this nature. At the end of
the hearing presiding judge Hlatshwayo J reserved judgment indefinitely and
11
SC – 20 - 2002
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21. after a seven month delay issued an unspeaking order dismissing the
challenge, crucially not furnishing reasons for his judgment. The learned judge
had had this to say about the challenge prior to the hearing:
‘this is not a story about a pound of flesh but a serious matter concerning the
heart of the nation12
’
After a fruitless delay of over two years to get the reasons for judgment from
the presiding judge counsel for Tsvangirai made an application at the Supreme
Court for redress in terms of section 24(1) of the Constitution alleging that the
rights of protection of the law and a fair hearing within in a reasonable time
had been violated in Tsvangirai v Mugabe & Anor13
. The Supreme Court
dismissed the application reasoning that as the order dismissing the challenge
handed down by the judge in the court a quo related to the preliminary points
raised by the appellant and the trial of the election petition never reached its
logical conclusion, a referral to the Supreme Court for a Bill of Rights
infringement does not lie to that court where a judge has not expressly made
one, effectively ending Tsvangirai’s hopes of an electoral challenge. Thus yet
again the again the Supreme Court had conveniently ducked a high profile
political case, on this occasion on the basis of a legal technicality. It is worth
noting that Tsvangirai’s challenge to the 2002 Presidential Election proper is
still in the Supreme Court on a preliminary point.
High Court judge Justice Bhunu perhaps best summed up this approach by
our courts at the opening of the High Court’s 2006 Masvingo Circuit wherein
the learned judge said,
It is, therefore, necessary to remind everyone concerned at this juncture that the
12
Chikuhwa J W ‘A Crisis of Governance: Zimbabwe’ p134,. Algora Publishing (2004)
13
SC 84/05
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22. courts are neutral arbiters. They are neither for or against anyone. The courts will
not help anyone spring into power nor help anyone remain in power. Those who
desire political office must go to the people and not the courts.’14
This is precisely the stance the newly established Electoral Court took in
handling the electoral petitions emanating from the 2008 harmonised general
elections. MDC-T had won 99 seats against ZANU-PF’s 97. ZANU PF was
challenging results in 53 constituencies while MDC-T was challenging results
in 52 constituencies. Given the close nature of the results, whatever decision
was going to come from the Electoral Court had the potential to radically alter
the political demographics of the next Parliament.
The Electoral Court under the headship of Makarau JP (as she then was) took
the deliberate stance of dismissing all the applications on the basis of a
number of technical issues, reasserting the stance that the courts would not
involve themselves in the political affairs of the nation. In Omar v Matutu &
Ors15
which was an election petition, the petitioner was aggrieved by the
declaration of first respondent as duly elected member of the House of
Assembly for Masvingo Urban House of Assembly Constituency citing various
irregularities in the conduct of the poll and counting of votes. Makarau JP
dismissed the petition on the basis of the petitioner serving the first respondent
at Harvest House, first respondent’s place of employment, and not personally,
as per law. Petitioner also failed to serve the petition within 10 days, doing so
on the 11th
day, the learned judge arriving at the conclusion that the Electoral
Court as a creature of statute with no inherent powers had no power to
14
Bhunu J ‘Judiciary only interprets the law’. February 15, 2006
http://www.herald.co.zw/inside.aspx?
sectid=523&livedate=2/15/2006%2012:00:00%20AM&cat=10
15
HH – 74 - 08
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23. condone a petition served out of time. This was an apt instance of the court
determining and dismissing the matter on the basis of technicalities and not
hearing it on its merits.
The Supreme Court bench in particular under Chidyausiku CJ has also
displayed a tendency of lending its process to the service of the State in high
profile cases – in cases challenging the constitutionality or legitimacy of
measures that are clearly in violation of the law the Supreme Court has opted
to depart from established legal principle in order to legitimate executive action.
An apt example was in Associated Newspapers of Zimbabwe (Pvt) Ltd v
Minister of State in the President’s Office & Ors16
where the Supreme Court
used the much maligned ‘dirty hands’ doctrine to block a legitimate challenge
by an independent newspaper on the legality of new legislation – the Access to
Information and Protection of Privacy Act17
, which imposed undemocratic
Government controls over the operations of newspapers and journalists.
Needless to say the judgment directly led to the closure of the only independent
newspaper at the time.
In land cases, the highly political nature of the Government’s land acquisition
and resettlement programme coupled with some judges being direct
beneficiaries of the programme18
meant in essence the trend of our courts being
complicit in their support of the Executive in high profile cases would continue
unabated. It began from the very onset in Minister of Lands, Agriculture &
16
S – 20 – 2003
17
Chapter [10:27]
18
16 Supreme and High Court Judges including Chidyausiku CJ owned large farms ranging in
size between 540 to 1380 hectares [see Southal R ‘Too Soon To Tell? Land Reform in Zimbabwe’
(2011) ]
d-nb.info/102441471X/34
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24. Rural Resettlement & Others v Commercial Farmers Union19
where the
newly appointed Chief Justice Chidyausiku dismissed an application by the
Commercial Farmers Union (‘CFU’), in terse and very strong terms, that he
should recuse himself because of his close association with the ruling party
and more importantly, his previous statements endorsing the Government’s
land policy – and he and three newly appointed judges (Cheda, Malaba,
Ziyambi JJA) ruled that the Government had fully complied with the Supreme
Court order20
to put in place a lawful programme of land reform that was in
conformity with the Constitution in spite of the fact that the CFU had furnished
detailed evidence that the rule of law had not been restored and the farmers
were still being prevented unlawfully from conducting their operations.
Interestingly Ebrahim JA dissenting expressed the opinion that the majority
decision had been predicated not on issues of law, but on issues of political
expediency. This observation was to prove apposite as not a single land case
heard on appeal at the Supreme Court went against the State, the death knell
with regards to land cases being sounded by Chidyausiku CJ in Commercial
Farmers Union et al. v Minister of Lands & Rural Resettlement et al.21
wherein the learned Chief Justice (Malaba DCJ, Ziyambi, Garwe, Cheda JJA
concurring) seeking to give finality to the issue declared expressly that the
human rights protections enshrined in Zimbabwe’s Constitution were subject
to those provisions of the Constitution providing for the land reform program.
He stated:
‘The land previously owned by the individual applicants was acquired by the
State in terms of s 16B of the Constitution. Section 16B has an overriding effect
19
2001(2) ZLR 457 (S)
20
Commercial Farmers Union v Minister of Lands & Ors 2000(2) ZLR 469(S)
21
SC 31/10
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25. on other sections of Chapter III of the Constitution.’ (my emphasis)
This interpretative approach by the Supreme Court which eschewed any
reliance on international law in favour of a strict and literal defence of the
legislature fit conveniently with the political scheme of things in which the
Supreme Court pandered to the whims and caprices of Government on the land
issue.
3.3 Conclusion
It is clear that it has been the traditional policy of our courts to shy away from
highly political matters that arise for determination. While there are merits in
this stance more so given the fact that the judicial independence of courts
relies solely on the whims of the Executive, the same cannot be said of the
propensity of our courts to side with the Executive in high profile cases as has
been highlighted in the foregoing. It is with this background in mind that has
been given in this chapter that the study proceeds to dissect the case that is
the focal point of this dissertation.
25 | P a g e

26. CHAPTER FOUR
THE MAWARIRE JUDGMENT: BACKGROUND, ANALYSIS
‘it is much easier for a camel to pass through the eye of a needle
than for this decision to make sense’22
Percy F. Makombe
4.1 Background
On the 22nd
of May 2013 President Robert Mugabe assented to Zimbabwe’s New
Constitution, signing it into law and replacing the 1980 Lancaster House
Constitution (‘Old Constitution’). This was an important development as it took
the nation a step closer to paving the way for the holding of general elections
under a new Constitutional dispensation. Barely a week later on Friday 31st
May 2013 the Constitutional Court, created as per section 166 of the New
Constitution of Zimbabwe, issued its first judgment, Jealousy Mbizvo
Mawarire v Robert Gabriel Mugabe N.O. & Ors23
which took many off guard
and abrogated itself the role of taking the final step to the holding of general
elections by ordering President Mugabe to hold elections by the 31st
of July
2013.
There had been many curious facets to this case even before judgment was
handed down. President Mugabe had repeatedly underscored his desire to hold
22
Makombe, F ‘Court Poll decision is legal sophistry’ http://www.legalbrief.co.za/article.php?
story=20130610101202780
23
CCZ 1/13
26 | P a g e

27. elections as soon as possible after the passage into law of the New Constitution
well before the 29th
of October 2013 which was the date contended by the MDC
formations as being the latest constitutional date for the poll. This was further
complicated by the insistence of the MDC formations and the Southern Africa
Development Community (SADC) who were the guarantors to the Global
Political Agreement (GPA) that formed the Government of National Unity (‘GNU’)
that all various reforms had to take place before elections.
A week before the Constitutional Court heard the case, the Supreme Court had
handed down judgment in Chombo v Parliament of Zimbabwe & Ors24
a case
with significant political overtones in that in casu MDC T Member of Parliament
sought to introduce a Private Member’s Bill that sought to make amendments
to the Urban Councils Act25
that would have dramatically watered down the
extensive powers bestowed on Central Government through the Minister of
Local Government, Rural and Urban Development over municipal and town
councils. The Bill had received a non – adverse report from the Parliamentary
Legal Committee. Judicial intervention in the passage of Bills through
Parliament was traditionally discouraged as it would open the door to political
manoeuvring. In spite of that the Supreme Court nullified the Bill, stating that
it was prohibited by Article 20.1.2 of the GPA as set out in schedule 8 to the
Constitution. The Supreme Court sitting as a full bench of Chidyausiku CJ,
Ziyambi, Garwe, Gowora, Omerjee JJA accepted the argument put forward on
behalf of the Minister of Local Government, Rural and Urban Development
that,
‘since the country was going through a transitional period which was to be
steered by three political groupings, the intention was that private members
24
SC 107/12
25
[Chapter 29:15]
27 | P a g e

28. would not be permitted to upset the inclusivity of decisions’26
The court however strenuously tried to point out that the right of a private
member to introduce a private bill was not entirely removed for the subsistence
of the GPA as the prohibition was only restricted to proposed legislation that
deals with government policies and programmes – a rather vague distinction
given the fact that any Bill enacted into law would necessitate government
enforcement. The point to be made here is would the Supreme Courts’
acceptance of the fact that the nation was going through a ‘transitional period
steered by three groupings’ which requires ‘inclusivity of decisions’ not have
been brought to bear on the minds of the very same judges who would sit as a
Constitutional Court and order the President to hold elections in spite of the
fact that the determination of an election date, if the meaning of the word
‘inclusivity of decisions’ is anything to go by, required at the very least the
input of the nations’ three groupings? This sudden about turn by our country’s
courts in taking this political decision certainly was unprecedented and equally
fascinating.
4.2 The Judgment
4.2.1 The Facts of the case
Applicant was Jealousy Mawarire, 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. Applicant argued, under the old constitution, that the President of
Zimbabwe, first respondent, was constitutionally obligated to set the dates for
26
At p.9
28 | P a g e

29. Zimbabwe’s next general election no later than the day after the 29th
of June
2013, when Parliament reaches the end of its constitutionally prescribed five
year term. Failure to fix a date for elections, applicant contended, before the
expiry of Parliament’s five year term would result in Zimbabwe being governed
unconstitutionally without a Parliament for up to four months. The failure to
do so, the applicant maintained, was a breach of his 1980 constitution rights.
4.2.2 Issues that fell for determination
The Constitutional Court was in essence asked to pronounce the
constitutionally required timing for the holding of a general election after the
dissolution of Parliament. Under the old 1980 Constitution, this was governed
by section 58(1), as read with sections 63(4) and 63(7) [‘the election provisions’].
For ease of reference the subsections will be quoted seriatim.
Section 58(1):
‘(1) A general election and elections for members of 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.’
Section 63(4):
(4) Parliament, unless sooner dissolved, shall last for five years, which period
shall be deemed to commence on the day the person elected as President enters
office in terms of section 28(5) after an election referred to in section 28(3)(a), and
shall then stand dissolved:
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30. Provided that, where the period referred to in this subsection is extended under
subsection (5) or (6), Parliament, unless sooner dissolved, shall stand dissolved
on the expiration of that extended period.
Section 63(7):
‘Subject to the provisions of subsection (4), any prorogation or dissolution of
Parliament shall be by proclamation in the Gazette and, in the case of a
dissolution , shall take effect from the day preceding the day or first day, as the
case may be, fixed by proclamation in accordance with section 58(1) for the
holding of a general election.’
Chidyausiku CJ who penned the majority judgment summed up the issues well
that fell for determination at page 4 of the cyclostyled judgment as being:
 Whether the applicant has locus standi to approach the Court in terms of
s 24(1) of the Constitution of Zimbabwe
 When do harmonised general elections fall due in terms of the laws
of Zimbabwe? (my emphasis)
 Whether the applicant had made out a case for the order sought.
4.3 Outcome
There were 3 judgments which focused primarily on the old constitution’s
electoral provisions. Chidyausiku CJ penned the majority judgment which
was concurred by Ziyambi, Garwe, Gowora, Hlatshwayo, Chiweshe , Guvava
JJA which having ruled that failure by the President to proclaim as soon as
possible dates for the holding of general elections when they fell due upon
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31. the dissolution of Parliament on 29 June 2013 was not only a violation of
his constitutional duty towards the applicant to exercise his functions as a
public officer in accordance with the law but also violated the applicant’s
rights as a voter and his legitimate expectation of protection of the law,
ordered the President to proclaim as soon as possible a date(s) for the
holding of general elections no later than 31 July 2013. There were 2
dissenting judgments from Malaba DCJ and Patel JA which essentially
came to the conclusion that the application would have been dismissed.
What follows is a detailed analysis of the respective judgments.
4.4 Majority Judgment
4.4.1 Analysis
The first issue Chidyausiku CJ writing for the majority grappled with was if
the applicant had locus standi to approach the court in terms of section
24(1) of the old Constitution which states:
‘If any person alleges that the Declaration of Rights has been, is being or is
likely to be contravened in relation to him ... then without prejudice to any
other action with respect to the same matter which is lawfully available, that
person ... may apply to the Supreme Court for redress.’
Applicant’s real or perceived violation of his Constitutional rights stemmed
from his belief that the first respondent (President’s) inaction in not
proclaiming the dates for the holding of general elections when the
expiration of Parliament was looming perilously close would lead to a state
where Zimbabwe was being run unconstitutionally without a Parliament. To
quote the applicant,
‘No interpretation whatsoever of the Constitution could ever validate the
31 | P a g e

32. existence of a situation of the State without the legislative arm of Government.
Such an unprecedented situation would be a crippling negation of a
fundamental tenet of our democracy which is a sine qua non of our
constitutional order.’27
Applicant further buttressed his locus standi through reference to section
18(1) of the old Constitution which provides that every person is entitled to
the protection of the law. Subsection (1a) of that section provides crucially
that every public officer has a duty towards every person in Zimbabwe to
exercise his or her functions as a public officer in accordance with the law
and to observe and uphold the law. This section was inserted by way of
Amendment No. 19 to the 1980 Constitution and as the learned judge
notes28
it confers a right on any and every Zimbabwean who is affected by a
failure to uphold the law to approach the law in terms of section 24(1).
This amendment effectively shut the door on what has been termed ‘the pre
2009 requirements’ which required an applicant to actually establish a right
infringed or likely to be contravened under the bill of rights before having
recourse to section 24(1). It finds its best expression in United Parties v
Minister of Justice, Legal and Parliamentary Affairs and Ors29
where the
court stated:
‘Much turns on the meaning of the phrase ‘likely to be contravened’. Certainly,
it does not embrace any fanciful or remote prospect of the Declaration of
Rights being contravened. Nor does it refer to the Declaration of Rights being
liable to contravention ... Rather it means a reasonable probability of such a
contravention occurring.’30
27
At p.6 CCZ 1/13
28
At p.6
29
1997 (2) ZLR 254 (S)
30
At 257
32 | P a g e

33. In what at best can be deemed a great deal of common sense, the learned
Chief Justice noted at page 8 of the cyclostyled judgment that:
‘Even under the pre – 2009 requirements, it appears to me that the applicant
is entitled to approach this Court for relief. Certainly, this Court does not
expect to appear before it only those who are dripping with blood of the actual
infringement of their rights or those who are shivering incoherently with the
fear of the impending threat which has actually engulfed them. This Court
will entertain even those who calmly perceive a looming infringement
and issue a declaration or appropriate order to stave the threat’ (my emphasis)
While this enlightened approach must be welcomed particularly as it widens
the pool of those who may have recourse to the ‘fountain of justice’, this was
a peculiar case which the majority in its decision, with respect, did not go
far enough in establishing if the applicant had established locus standi.
The majority correctly established that applicant was 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. For the purposes of the application, in granting
locus standi to the applicant the Court treated the applicant as ‘any person’
as per section 24(1) of the former Constitution which is the relevant portion
of the constitutional right to bring cases before the court as opposed to
treating the applicant as ‘any voter’.
It is correct that both the former Constitution and the new Constitution
allows ‘any person’ with reasonable fear that their rights are about to be
infringed to approach the Court for relief. However, for the purposes of this
application it was with respect an incorrect approach the Court took in
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34. granting the applicant locus standi on the basis of being ‘any person’.
It is trite both by operation of law and practice that through the creation of
a voters roll kept by the Registrar General there was created in this country
a separate class of people known as ‘voters’. A voter may indeed fall under
the contemplation of the expression ‘any person’ but the reverse is true
because, quite matter of factly, not all persons are voters. Some are not
voters simply because they choose not to. What is evident however is while
‘any person’ can approach the Court to press their right to vote, by virtue of
the fact that only registered voters are entitled to vote in our country and
not simply ‘any person’, it follows that only a registered voter can bring an
application about the timing of elections. This is so because there needs to
be a nexus between the person suing and the right they seek to enforce
otherwise the Courts could quite easily find themselves inundated with
scores of name seekers suing about this right and that just for publicity or
glory seeking. There was need for the applicant to furnish the court with
evidence that showed that he was a registered voter, in the constituency he
claimed and also disclosed where and when he registered. This is because if
applicant were not a registered voter such a date would only be of academic
interest to him simply because having chosen not to participate in the
electoral process by not being a voter he has no interest in the date. The
absence of an enquiry into applicant's qualification as a voter in a case
whose relief was going to radically alter the constitutional trajectory of the
nation seems almost self - defeating.
While it is expected that the larger picture in this case really was about
what the Applicant claimed would be a violation of his right of protection of
the law in the event of the perpetuation of a ‘government’ operating for up to
34 | P a g e

35. four months without its Legislative arm, it does not do away with this
problem alluded to above. This points to a clear exuberance on the part of
the Court to entertain this case whose ramifications the Court must have
certainly found appetising to say the least.
The second issue the learned Chief Justice grappled with concerned the
timing of when the harmonised general elections fell due in terms of the
laws of Zimbabwe following the dissolution of Parliament. This was in
essence the heart of the case.
Dissolution of Parliament can only take place in one of two ways namely:
 Following a proclamation by the President
 Through the effluxion of time when the five year term of Parliament
ends.
The case turned on the interpretation to be placed on the meaning of section
58(1) of the former Constitution. Ultimately, the learned Chief Justice guided
by his own version of constitutionalism and judicial respect for separation of
powers, could not lead himself to accept the plain reading of the section which
provided for government to exist without a Parliament for four months which in
his view to:
‘exist too long without a Parliament would be tantamount to shredding the
constitution and inviting a State of lawlessness and disorder’
Chidyausiku CJ advanced the position that there existed two ways of reading
the section 58(1) depending on what he termed ‘punctuation and emphasis’.
The learned Chief Justice came up with what he termed a Reading ‘A’ of section
58(1) which read:
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36. 58 Elections
(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 the section 63(4) as the
President may, by proclamation in the Gazette, fix’
The learned judge had a reading ‘B’ which was the manner in which the section
appeared as read from the Constitution. As such the section had been broken
up into two scenarios which both answered the question when elections are to
be held but with one putting emphasis on the preposition ‘on’ and the other on
‘after’. His insertion of the colon on after the words ‘held on’ in reading ‘A’
despite the fact that none existed in the original reading of the section was to
ostensibly clear up what he deemed as the ambiguous nature of the provision,
but in reality no ambiguity existed to start with.
It must be reiterated that Chidyausiku CJ was ultimately guided by what he
believed was an untenable situation that was created by a plain reading of the
section of government being able to exist for up to 4 months without a
Parliament. In his opinion it was a ‘mind boggling’ situation. To quote the
learned Chief Justice:
The expiry of life of Parliament would have silently passed without notice to all
concerned but with a dramatic effect of creating a deformed State without
Parliament for up to four months ... this would lead to an absurdity and glaring
anomalies’
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37. By insertion of the colon after ‘on’ in section 58(1) it radically altered the
meaning of the section and gave a new meaning to it that accorded with the
judge’s own conception of constitutionalism and separation of powers and gave
the Applicant the desired result. The meaning now simply was the President
must have set an election date within a period of 4 months before the
dissolution of Parliament and that an election should be held upon the
dissolution of Parliament. Yet the provision in question quite emphatically uses
the word ‘after’ and we must as such assume deliberately so. Such a reading,
in the learned judge’s opinion, cures the ‘mind boggling’ situation of
Government existing without a Parliament for 4 months which the learned
judge emphasized would be tantamount to ‘shredding the Constitution’, an
‘annihilation’ of the Constitution.
With respect this is not a sound argument. In this regard the forceful nature of
Malaba DCJ and Patel JA’s dissenting opinions are particularly instructive. To
start with, there clearly was no need to depart from the plain and ordinary
grammatical meaning of the words as they appear on section 58(1). Patel JA
puts it well where he says:
‘the clear words of a Constitution must be construed to override any doctrine
of constitutionalism predicated on essential values or core values. In
general, the principles governing the interpretation of a Constitution are basically
the same as those governing the interpretation of statutes. On must look to the
words actually used and deduce what they mean within the context in which
they appear ... If the words are clear and unambiguous, then no more is
necessary than to expound them in their natural and grammatical sense.’31
(my
emphasis)
31
At p.46
37 | P a g e

38. The learned Chief Justice made the fair comment that in interpreting the law,
the courts must follow an interpretation that does not lead to an absurdity.
However, by inserting a colon where non existed previously in section 58(1) he
unwittingly led the Court to an absurdity. If it was truly the intention of the
Legislature that the President is under a duty to issue a proclamation fixing the
day or days of the election within a period of four months before the dissolution
of Parliament as a matter of common sense the date of the election would be
known in advance as if it was fixed by legislation and there clearly would be no
point in the President issuing a proclamation and a date for an election that is
pre – determined.
The nature of section 58(1) vested in the President a discretionary power to fix
a day or days of the first election by a proclamation published in the official
Gazette. As such the very nature of such discretionary power, as Malaba DCJ
argued, gives the President the power to act on his own discretion or judgment
– there was no duty on the President to act in a specified at a specified time. It
follows as such that there was no legal duty on the President to fix 29 June
2013 or a day after as the date of the first elections. To quote Malaba DCJ:
‘The court cannot get involved in determining for the President the manner in
which he should exercise his discretion. It cannot tell the President which day or
days he should fix or that he was wrong in fixing a certain day. It is not the
function of a court of law to substitute its own wisdom and discretion for that of
the person to whose judgment a matter is entrusted by the law. Whilst a court can
review a public officer’s action for legality it cannot act as if it were the Executive.’
A finding that the President has a discretionary power under section 58(1)
which he has to exercise within the prescribed time limits would clearly have
avoided a contradictory order as evidenced by the majority.
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39. Furthermore, the aversion to a period of four months of government without a
Parliament seems to stem from an interpretation of the principle of separation
of powers which is part and parcel of a constitutional democracy. Chidyausiku
CJ found the prospect of rule by decree unpalatable. While one may agree with
the learned Chief Justice that it is far from desirable, it certainly is not
unconstitutional as it is explicitly provided for on plain reading of section 58(1).
As Matyszak opines:
‘This intrusion of the President into the legislative realm and ability to rule by
decree has long been part of our old Constitution and is carried over into the new.
The Chief Justice’s mind has, however, remained resolutely unboggled in the face
of these clearly egregious and undemocratic provisions. The old and new
constitution provide that the legislature consists of both Parliament and the
President. It is difficult to find a more blatant instance of statutory executive
intrusion into the legislative arm. Furthermore the ‘decrees’ referred to by the
Chief Justice are in fact Regulations issued in terms of the Presidential Powers
(Temporary Measures) Act ... It is specifically designed to do what the Chief
Justice now claims to find so abhorrent - to allow the President to make law in
the absence of Parliament’32
Ironically, in Kuchera & Ors v The Minister of Justice, Legal &
Parliamentary Affairs33
, the case involved an urgent chamber application
challenging the alteration of an amendment made by the Legislature in 2007 in
which it was agreed to amend the Electoral Act34
to exclude police officers from
polling stations. The President had taken advantage of the dissolution of
Parliament and shortly before the March 2008 elections invoked the
32
Matyszak D ‘New Bottles: Old Wine – An Analysis of the Constitutional Court Judgment on
Election Dates’ Research & Advocacy Unit (2013)
33
HH – 36 – 08
34
[Chapter 2:13]
39 | P a g e

40. Presidential Powers (Temporary Measures) Act35
to reinsert the provision
allowing for police officers at polling stations in spite of the fact that Parliament
had expressly called for the deletion of the provision just a few months earlier.
Guvava J (as she then was) defended this blatant example of rule by decree,
which is now in this Concourt judgment being deemed offensive, in glowing
terms stating:
‘It is trite that once regulations are published in terms of the Presidential Powers
Temporary Measures Act they have the same force and effect during their
lifespan, as legislation passed by an act of Parliament’36
Thus with respect with Chidyausiku CJ, it is not an absurdity that the country
should be run by decree without a Parliament as quite evidently our legislative
architecture is specifically designed to facilitate this possibility.
Constitutionally, Patel JA pinpoints the fact that the former Constitution seems
to contemplate this scenario where it is expressly provided in section 31E(2)
that:
‘No person shal hold office as Vice – President, Minister or Deputy Minister for
longer than three months unless he is a member of Parliament:
Provided that if during that period Parliament is dissolved, he may continue to
hold such office without being a member of Parliament until Parliament first meets
after the dissolution’
The insightful analysis of Malaba DCJ is faultless in this regard. Zimbabwe is
not the only constitutional democracy with a provision in a constitution
allowing for the period in which the affairs of a country can be run by the
Executive and Judiciary without Parliament following its dissolution by
35
[Chapter 10:20]
36
At p.4
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41. operation of law at the end of its full term.
Article 64.3 of the Constitution of Bulgaria provides that the date for an
election shall fall within two months from expiry of the life of Parliament.
Section 55(4) of the Malaysian Constitution provides that such a date shall fall
within sixty days from the dissolution of Parliament. Here in Africa in the
Kenyan Constitution section 9 of the Sixth Schedule provided that the first
elections would be held sixty days after the dissolution of Parliament. Even in
countries such as Canada where the election date is set by the Legislature the
situation Applicant so valiantly criticises could not be avoided. That
Constitution provides that elections are to be held on 19 October at the end of
four years of Parliament. The dissolution of Parliament by proclamation
prematurely terminated the life of Parliament. As a result an election that took
place on 2 May 2011, the life of Parliament would end on 2 May 2015. The
general election would have to be held five months later on 19 October 2015.
It thus is clear that the principle that states that there is period after the
automatic dissolution of Parliament when the affairs of the country can be run
by the Executive and Judiciary is well recognised. With that finding the
Applicant’s case falls away. Chinyoka sums it up well when he states:
‘Why is it untenable for elections to be held with good preparation after the
safeguards in the new constitution have been implemented under the supervision
of the both the Executive and Judicial arms of ‘Government’ over a four month
period but it is perfectly appropriate to have a patched up body elected through a
rushed and consequently imperfect process that compounds the very
unlawfulness that the Applicant accuses the Respondents of is not clear to me.
Especially since, either way, ‘government’ will run for some time without
41 | P a g e

42. Parliament.37
’
To borrow the learned Chief Justice’s own words, it certainly is mind boggling!
4.5 The Minority Judgments
4.5.1 Analysis
Over and above what has already been alluded to above, Justices Malaba and
Patel found that the elections provisions must be called within four months
after the dissolution of Parliament. From an interpretation standpoint they
simply gave the words their plain and ordinary meaning. Crucially the
minority’s reasoning was consistent with the provisions of the new Constitution
of Zimbabwe that permit government to function without a sitting Parliament
for up to 90 days after the dissolution of Parliament.
Section 158 of the New Constitution governing the timing of elections was
suspended, thus in essence meaning the judges of the Court were seized with
considering and applying the timing of the provisions of the former
Constitution. This is not to say the new Constitution was irrelevant insofar as
the general election that formed the object of the dispute was concerned. It was
very much relevant as the ‘first elections’ mentioned in the new Constitution
were the general elections that formed the basis of the application. Malaba DCJ
is the only judge who directly addressed the provisions of the New Constitution
stating at page 38 of the cyclostyled judgment:
‘In suspending the coming into operation of s 158 the framers of the new
Constitution were aware of the provisions of s 58(1) of the former Constitution.
37
Chinyoka T ‘My dissent in Jealousy Mawarire vs Robert Mugabe : Tino Chinyoka
http://nehandaradio.com/2013/06/07/my-dissent-in-jealousy-mawarire-vs-robert-mugabe-
tino-chinyoka/
42 | P a g e

43. They were aware of the clear conflict between the position provided for under s
58(1) and that enacted by s 158(1)(a) of the new Constitution. Section 158(1)(a)
provides for the fixing of the date of elections within the specified period before
the date of an automatic dissolution of Parliament. Section 58(1) to the contrary
provides for the fixing of the date of the election within the prescribed period after
the date of automatic dissolution of Parliament’
The Sixth Schedule to the new Constitution is the transitional section
suspending some sections of the Constitution and bringing some into force on
the publication day. Section 1 of Part 1 of the Sixth Schedule provided that
‘first elections’ be held in terms of the new Constitution. Section 8 Part 3 of the
Sixth Schedule went further to state that the ‘first elections’ must be conducted
in terms of an Electoral Law in conformity with this Constitution. Malaba DCJ
aptly notes:
‘The first elections which are due to be held under the new Constitution are
bound to test the readiness of Zimbabweans to embrace the change embodied in
the New Constitution ... Choosing the precise date to hold the first elections
is therefore a matter of utmost importance to be handled with greatest
care’ (my emphasis)
This seems a more plausible notion of constitutionalism as opposed to that
displayed by Chidyausiku CJ in that in deciding on a date for the elections the
Court and the Executive had to ensure the ‘democratic quality of the first
elections’ which was a constitutional imperative. A rushed date, as reflected in
the majority judgment, would only serve to seriously dilute the quality of the
first elections.
Crucially though, the Sixth Schedule does not set a specific date for the
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44. elections. Wallis is spot on when he states:
‘A plain reading of the Sixth Schedule appears to condition ‘first elections’ on the
completions of identifiable processes (which have timing requirements of their
own) and not to equate the ‘first elections’ with elections generally and their
timing ... A more constitutionally appropriate approach is that elections should be
held when Zimbabwe has completed a host of constitutionally required tasks.’38
The majority once it adopted the position that the setting of election dates fell
four months before automatic dissolution of Parliament cannot then have
turned around and given the President an extra month after the automatic
dissolution of Parliament to set the polls dates based on what it considered to
be the ‘exigencies of the matter’. To borrow the learned Deputy Chief Justice’s
words it certainly defied logic as it was a conclusion stating the President had
broken the supreme law of the land and yet at the same time authorising him
to continue acting unlawfully, a dangerous principle that had no basis in law.
4.6 Conclusion
It is manifestly clear that the majority made a political decision in ordering the
President as head of the Executive to set an election date of 31st
of July 2013
which was at complete variance with the clear and express provisions of the
law. The Court was sitting as a Constitutional Court seized with being the
vanguards of the supreme law of the land. This task simply involves
interpreting the law and leaving it at that. It is difficult to believe the learned
justices that proferred the majority opinion sufficiently engaged with the new
38
Wallis A ‘Zimbabwe’s Election Ruling: A Constitutional Conundrum’ Southern Africa Litigation Centre (2013)
www.southernafricalitigationcentre.org/2013/06/12/zimbabwes-election-ruling-a-constitutional-
conundrum/
44 | P a g e

45. Constitution and fully comprehended the plethora of legislative provisions that
made the July 31 deadline an impossibility. Having strayed outside the
interpretive role of the Court into making laws and executing them, which was
clear judicial usurpation of powers vested in other arms of government, it is
shocking that the Court decided to pluck a date that would effectively curtail
and cancel out the transitional process and safeguards put in place by the new
Constitution, a false start to a new Constitutional dispensation that required a
strong Constitutional Court as its guardian.
CHAPTER FIVE
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46. AFTERMATH OF THE CONSTITUTIONAL COURT JUDGMENT
‘This is a direct consequence of negotiating a new Constitution which
did not provide for a fresh and reconstructed court to adjudicate upon
constitutional matters, but rather the current Supreme Court operating,
under a different name with a few more judges’39
Derek Matyszak
5.1 Introduction
A clear aftermath of the ConCourt judgment, where the Court took an
unprecedented stance of fixing an election date and ordering the Executive to
comply with it which in essence decided the political fate of the entire nation,
was the advent of judicialisation of politics in Zimbabwe. Where previously the
courts may have taken the stance that politics is a game for politicians only viz.
Legislators and members of the Executive, it is clear that our courts are now
willing to directly confront and resolve political questions, as reflected in this
judgment, that trouble society. What follows is an overview of some cases that
have come before the ConCourt in the wake of the Mawarire judgment coupled
with a jurisidictional comparison of some countries that have adopted the
practice in question.
5.2 Significance of court approach in Mawarire case
It does not follow that the only course of action open to the Court having found
that the applicant was entitled to some form of relief was to fix an election date
as sought by the applicant. The fact that the Court consciously decided to
make the political decision to set an election date gives credence to the fact that
judicialisation of politics has taken centre stage. Kapurura40
suggested a viable
39
Matyszak D ‘New Bottles: Old Wine – An Analysis of the Constitutional Court Judgment on Election Dates’ Research
& Advocacy Unit (2013)
40
Kapurura T ‘Was The Recent Election Deadline Legislated From The Bench?’
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47. alternative with which this writer is in total agreement. Such course would
entail after hearing arguments from both sides, not affording the case a
judgment in black and white. Instead there would be a reserved judgment
accompanied by a recommendation to the Executive to take over and review the
issue as conflict of roles, as far as separation of powers is concerned, would be
cited. The Executive would then emerge with a pragmatic solution, which given
the fact that the government was an inclusive one comprised of three political
groupings, may very well have led to a polling date being fixed that was truly
representative of the wishes of the populace, not an court expedited deadline
where certain conditions for a free and fair election could not possibly be met in
such a limited timeframe, such as an updated voters roll. Chiweshe JP’s
remarks in Kufa & Another v The President of the Republic of Zimbabwe
N.O. & Ors41
are particularly instructive where he reasoned thus:
‘I am of the view that once a political matter is inserted into the Constitution, it
becomes justiciable. However, any remedy that the court may impose must
take into account any adverse implications of such remedy on the
political order of the day’.42
(my emphasis)
In this case the applicant sought an order of the court declaring the
appointment of an additional ten ministers from the figure of 31 Ministers
provided for in terms of Article 20.1.6(5) of Schedule 8 to the Constitution by
the President null and void. The learned judge ruled that in as much as that
was anomalous, it was not an anomaly that the legislature itself could not
address one way or the other given its wide powers. It cannot be reasonably
said that the Constitutional Court sufficiently took into account the adverse
http://www.zimeye.org/?p=82710
41
HH – 86 – 11
42
At p.5
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48. ramifications of its decision on the political order of the day. It makes it even
more bizarre why the honourable court at the very least did not seek written
representations from the Executive having taken the political decision to
abrogate unto itself the political decision to set the harmonised general election
date. Be that as it may, the political decision made by the Court points to
judicialisation of politics.
5.3 Overview of select cases after the Mawarire Judgment
Given the fact that the Mawarire judgment gave a strict deadline of July 31 it
was perhaps inevitable that there would be a series of court applications that
alleged the infringement of rights created by the new Constitution.
Interestingly, the Constitutional Court was unfazed by the applications sticking
to its political decision even in the face of a Southern Africa Development
Community Extraordinary Heads of State Communique on the 15th
of June
2013 that agreed on the need for the Government of Zimbabwe to engage the
Constitutional Court to seek more time beyond the 31 July 2013 deadline for
the holding of Harmonised Elections43
, presumably to allow for the much
clamoured for ‘reforms’ that would necessitate a free and fair election. It thus is
noteworthy that even in the face of overwhelming political pressure, the Court
was hell bent on determining the political fate of the nation at the stroke of a
pen.
(1) Minister of Justice & Legal Affairs v Jealousy Mawarire & Ors
The Justice Minister submitted an application on the 18th
of June 2013 to the
43
Veritas ‘Pre – Referendum and Pre – Election Challenges Dismissed by the Courts’
http://www.thezimbabwean.co/news/zimbabwe/68169/pre-referendum-and-pre-election.html
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49. Constitutional Court (‘ConCourt’) seeking a 14 – day extension of the July 31
deadline that had been set by the ConCourt in its Mawarire decision on the 31st
of May. The Minister unsurprisingly pointed that he was only applying for the
extension because the SADC Summit had said he should do so, but re –
affirmed the stance taken by the President towards the Mawarire decision that
he saw no legal difficulties or impediments in complying with the judgment, in
essence making a half hearted application that was doomed to fail.
The Prime Minister filed opposing papers stating that the SADC Summit only
mandated a joint GPA principals’ application. Professor Ncube also made a
counter application setting out a detailed justification for an extension of an
election date.
(2) Nixon Nyikadzino v The President, the Prime Minister & Ors
Filed by a civil society activist on 12th
June 2013, the application asked for an
extension of the election date arguing that the holding of an election on the 31st
of July 2013 violated a number of constitutional rights under the new
Constitution that included inter alia, political rights, right to administrative
justice, right to equal protection and benefit of the law as a voter and citizen of
Zimbabwe. He averred a compelling argument that it would not be possible to
implement essential pre – election implementation of other rights of the new
Constitution such as section 52(a) freedom from violence, section 58 freedom of
assembly and association, section 62 access to information and section 208
security sector alignment. The applicant also argued that it was not objectively
possible to comply with the Court order because in line with the Constitution,
elections could only be held in accordance with an Act of Parliament which
must be in compliance with the Constitution. The Presidential Powers
(Temporary Measures) (Amendment of Electoral Act) Regulations, 2013 enacted
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50. under the Presidential Powers (Temporary Measures) Act did not qualify as an
Act.
(3) Maria Phiri v The President & Ors
Lodged on the 7th
of June, applicant had under the former Constitution been
classified as an ‘alien’ but was confirmed as a citizen under the new
Constitution. After undergoing a lengthy process to obtain a new ‘Citizen’ ID
document in order to register as a voter, applicant applied to have the election
date postponed arguing that the timetable fixed for the election did not allow
for persons in her position to exercise their constitutional right to vote which in
essence meant elections under the subsisting timetable would not be in
accordance with the Constitution.
(4) Morgan Tsvangirai v The President & Ors
The Prime Minister lodged on the 24th
of June a separate application that:
• Challenged the constitutional validity of the proclamation of elections by
31st
July given the legal impossibility of the timeframes
• Unconstitutional use of the Presidential Powers (Temporary Measures)
Act to amend the Electoral Law through Statutory Instrument 85/2013
• Unconstitutionality of the Presidential Powers (Temporary Measures) Act
which applicant averred was inconsistent with the principle of
separation of powers given its delegation of sweeping legislative powers
which were equivalent with Parliament itself.
Outcome
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51. On the 4th
of July all the above applications were heard and dismissed by
the Constitutional Court in their totality, confirming ‘for the avoidance of
doubt’ 31 July as the poll date in compliance with the Court’s order of May
31st
in the Mawarire case and in accordance with the President’s
proclamation under SI 86/2013. An opportunity to right an irresponsible
political decision was missed by the Court, that instead opted to firmly stick
to its original decision.
The New Constitution interestingly has provisions that contemplate a
political role being exercised judicially by the courts. Section 93 states that
an aggrieved candidate may challenge the validity of the election of a
President or Vice - President by lodging a petition or application before the
Constitutional Court within 7 days of the publication of the results. This
provision almost had occasion to be tested in Tsvangirai v Mugabe &
Others wherein the applicant was challenging the results of the Presidential
Election on July 31 but withdrew the petition on the eve of the hearing.
Section 143(3) empowers the President to dissolve Parliament where it
unreasonably fails to pass an Appropriation Bill. Such decision is subject to
review by the Constitutional Court within 7 days of the dissolution.
It is clear from what has been stated in the foregoing that judicialisation of
politics has taken root in our jurisdiction. What follows is an analysis of this
practice of judicialisation of politics in other jurisdictions namely South
Africa, Canada and the United States of America, the point that is sought to
be made being that in as much as it has been welcomed in some
jurisdictions, it has been discouraged in some.
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52. 4.4 COMPARATIVE ANALYSIS OF JUDICIALISATION OF POLITICS
IN OTHER JURISDICTIONS
4.4.1 South Africa
The South African courts have been in recent times gravitating towards the
settling of more and more cases that are of an inherently political nature.
This is not to suggest there has been judicialisation of politics in South
Africa. Indeed, the courts there have issued the warning that ultimately,
political issues must be handled at a political level – the role of the courts
where such issues arise is merely to police the parties within the four
corners of the constitutional framework. To a paint a clearer picture is a
look at a few high profile political cases that have come before, and been
subsequently determined, by the South African courts in recent times.
(1) Mazibuko, Leader of the Opposition in the National Assembly v
Sisulu, MP Speaker for the National Assembly44
In casu, the applicant who was the leader of the Opposition in the National
Assembly of South Africa sought an order, on an urgent basis, directing the
Speaker of the House of Assembly (first respondent) to take whatever steps
necessary to ensure that a motion of no confidence in the President of the
Republic of South Africa which was dated 8 November 2012 was debated
and scheduled for a vote on or before the 22nd
of November 2012.
Davis J held that the Rules of the National Assembly did not empower the
Speaker to do so and as such it was not within the purview of the Court to
order the Speaker to do something the Rules of the National Assembly did
not entitle him to do so. The main problem that confronted the Court was
44
2013(4) SA 243 (WCC)
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53. that the Rules of the National Assembly did not provide for a deadlock
breaking mechanism to ensure that a vote of no confidence was debated
urgently – even where the majority simply wished to block the debate or
where it wished to delay the debate to a future date of its liking. The High
Court could not re – write the Rules of the National Assembly, and in any
event was not prepared to, as the power to determine the processes to be
followed by the National Assembly fell within the constitutional domain of
the National Assembly. The learned judge’s remarks at page 32 of the
cyclostyled judgment are particularly instructive where he says:
‘Courts do not run the country, nor were they intended to govern the country.
Courts exist to police the constitutional boundaries, as I have sketched them.
Where the constitutional boundaries are breached and transgressed, courts
have a clear and express role. And must then act without fear or favour. There
is a danger in South Africa however of the politicisation of the judiciary,
drawing the judiciary into every and all political disputes, as if there is no
other forum to deal with a political impasse relating to policy, or disputes
which clearly carry polycentric consequences beyond the scope of
adjudication. In the context of this dispute, judges cannot be expected to
dictate to Parliament when and how they should arrange its precise order of
business matters. What courts can do, however, is to say to Parliament: you
must operate within a constitutionally compatible framework.’
This stance of policing the constitutional boundaries and re – affirming the
standpoint that courts should not be used to settle political disputes was
also underscored by the Constitutional Court of South Africa when the
matter was heard on appeal where Jafta J in a minority judgment noted:
‘Political issues must be resolved at a political level. Our courts should not be
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54. drawn into political disputes, the resolution of which falls appropriately within
the domain of other fora established in terms of the Constitution.’45
(2) Democratic Alliance v President of the Republic of South Africa and
Others46
In this landmark case, the Supreme Court of Appeal (‘SCA’) unanimously set
aside President Zuma’s appointment of Mr Menzi Simelane as the National
Director of Public Prosecutions (‘NDPP’) on the 25th
November 2009 on the
basis of being inconsistent with the Constitution and invalid. The Court found
that the President had acted irrationally and unlawfully when he appointed
Simelane as NDPP, acting in breach of the express provisions of the
Constitution and section 9(1)(b) of the National Prosecuting Authority Act47
The appellants had contended that the appointment of Simelane was contrary
to the requirements of section 9(1)(b) of the Act as he was not a ‘fit and proper
person’ within the contemplation of that subsection. In any event, the
appellants contended, the President had not sufficiently interrogated
Simelane’s fitness for office in the manner contemplated by the subsection.
Furthermore, Simelane had demonstrated a history of lack of integrity, which
given the fact that section 179(4) of the Constitution required the NPA to
execute its duties without fear or favour, was not an obligation that could be
successfully discharged through Simelane.
The SCA in upholding the appeal pointed to the fundamental standpoint that
the legislative and executive arms of government are bound by legal prescripts
which placed a premium on accountability, responsiveness and openness. As
45
Mazibuko, MP, Leader of the Opposition in the National Assembly v Sisulu, MP, Speaker of the
National Assembly & Anor CCT 115/12 at 39
46
2012(1) SA 417 (SCA)
47
Act 32 of 1998
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55. such to ensure a functional, accountable and constitutional democracy there
had to be limits placed on the exercise of power. Institutions and office bearers,
such as the President, must work within the law and be accountable. To
borrow the Court’s glowing words:
‘ours is a government of laws and not of men and women.’
Under such a state of affairs the President and other members of the Executive
must work within the law.
Comment
What can be gleaned from the cases above is the position of the South African
courts insofar as judicialisation of politics is concerned is manifestly clear – the
courts are not the appropriate forum to deal with political disputes. The role of
the Court remains to interpret the law and invalidate conduct, be it
perpetuated by the Executive or any other individual,that is at variance with
the express provisions of the law. As aptly underscored by former
Constitutional Court of South Africa judge Kate O’Regan when delivering the
annual Helen Suzman Memorial Lecture reflecting on the role and work of the
Constitutional Court:
‘in fulfilling its constitutional mandate, the role of the Courts is not to thwart or
frustrate the democratic arms of government , but it is rather to hold them
accountable for the manner in which they exercise public power.’48
48
Helen Suzman Foundation ‘The Implications of the SCA’s Simelane judgment’ (2011)
http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71656?
oid=270137&sn=Detail&pid=71656
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56. 4.4.2 Canada
There has been an expansion of the role of the courts in Canada from merely
making decisions about rights issues to also encompass decisions affecting
politics. Such political questions have been framed as constitutional issues so
that they can be resolved by the courts and not politicians49
An apt instance of this has been the Quebec Secession Reference50
, a matter
in which the Supreme Court of Canada was asked by the Governor in Council
of Canada (which is in essence the Cabinet of Canada) to give an advisory
opinion on the legality of the proposed secession of the province of Quebec from
the Canadian Federation under both Canadian and international law. In a
referendum held in 1995 in Quebec by a 50.6% to 49.4% vote split the Quebec
secessionist movement had lost in its attempt to allow for Quebec to secede
from the Canadian Federation thus the courts became the only route through
which the secession issue could be further explored. Compelling submissions
were made by the parties with the federal government arguing that Quebec
could only secede through a constitutional amendment while an amicus curiae
pointed out that the reference was invalid as the question the Court was being
asked to determine was a political one that was outside the authority of the
Court.
In arriving at its judgment the Court adopted a middle of the road approach,
pointing out that unilateral secession was not legal but if a referendum was
held to determine whether Quebec could secede there could be no basis on the
part of the Canadian Federation to deny the government of Quebec the right to
49
Hunt, S ‘The Judicialisation of Politics in Canada and the United States’ (2013) Bowling Green
State University
50
[1998] 2 S.C.R. 217
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57. secede. This judgment prompted the Canadian Parliament to pass the Clarity
Act of 2000 which expressly stated that for any province to leave Canada it
must have clear referendum language for independence and must have a super
– majority viz. More than 50%+1.
Quebec is Canada’s second largest province – the issue of its proposed
secession as enunciated by those in support of secession in that province was a
hotly disputed political issue. Thus the stance by the Canadian Courts to
transform Quebec’s political status into a judicial question in which they
became the key deciding body points to a clear judicialisation of politics in that
nation.
4.4.3 United States of America
The United States has experienced judicialisation of politics to a large scale. As
aptly noted by Alexis de Tocqueville:
‘scarcely any political question arises in the United States that is not resolved,
sooner or later, into a judicial question.’51
This is largely because American politics has by and large been Constitution
centred and the Constitution creates three separate and equal branches of
government. Given the fact that it is a federal constitutional system it is
perhaps inevitable that the Supreme Court of the United States of America is
the mediator in many of the controversial political issues that arise between the
state and national government. In the famous case of Marbury v Madison52
the
51
Banting K, Hoberg G, Simeon R ‘Degrees of Freedom: Canada and the United States in a
Changing World (1997) at p.313
52
5 U.S. 137 (1803)
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58. Court made a determination on the powers of the federal government. The
Court held that the Supreme Court has the authority to review the acts of
Congress, the legislative arm of government and determine whether they are
unconstitutional.
Such a standpoint has resulted in the court having a proud history of
determining constitutional limits for the legislature. In Planned Parenthood v
Casey53
the court refused to permit certain legislative restrictions on access to
abortions. This evidently results in legislation being made in the courts and is
the main reason why appointments to the Supreme Court have become
partisan and political issues.
Where the Legislature has refrained from making law, the Supreme Court has
stepped in. Famous instances of this have included the extension of
constitutional protections to the those accused of crimes such as in Miranda v
Arizona54
, the inclusion of right to abortion by blocking government regulations
of abortion in Roe v Wade55
and even establishing busing plans in school
districts such as in Swann v Charlotte – Meckelnburg Board of Education56
.
In cases such as these the courts developed policies that clearly had far
reaching and political ramifications, which is a clear judicialisation of politics.
The Supreme Court exercises what is known as a command function in which
the court can instruct the government on what to do. Silverstein puts it well
when he states that it means,
‘policy advocates might be able to achieve their goals by relying upon judicial
arguments and orders rather than working thorough the ordinary political process
53
505 U.S. 833 (1992)
54
384 U.S. 436 (1966)
55
410 U.S. 113 (1973)
56
402 U.S. 1 (1971)
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59. of bargaining, persuasion, negotiation and elections.’57
An apt instance of this is in the case of Monroe v Pape58
. The court held that
citizens could bring the Civil Rights Act of 1871 ‘section 1983 lawsuits’ against
state officials. The said section 1983 imposes civil liability on any person who
deprives another of constitutional rights. This decision became a useful avenue
through which prison inmates could challenge the constitutionality of their
time in prison and led to prison condition reform.
The Supreme Court of the United States of America has also played a key role
in determining the political future of its leaders by being the decision maker in
national elections as was so clearly illustrated in the landmark case of Bush v
Gore59
which was a case that related to a dispute over the American
presidency. By a narrow margin of 5 – 4 the court in essence picked who was to
be the next President of the United States of America. Inevitably in its
aftermath the Supreme Court was subjected to harsh criticism from media and
academia alike for not only lightly spending its political capital but seemingly
‘over drafting’ on it.60
The point that is sought to be made is this was by far the
most prominent example of judicialisation of politics that, as has been
illustrated, has taken firm root in the United States of America.
5.5 Conclusion
In conclusion, it is evident that there has been a clear advent of judicialisation
of politics in our jurisdiction that has seen our courts adopt a much more pro
57
Silverstein G ‘Law’s Allure in American Politics and Policy: What It Is, What It Is Not, and What It
Might Yet Be’ Law & Social Inquiry 35, No. 4 at 1079 (2010)
58
365 U.S. 167 (1961)
59
531 U.S. 98 (2000)
60
See Chemerinsky E ‘Bush v Gore was not Justiciable’ 76 Notre Dame Law Review 1093 (2000);
Pildes R ‘The Supreme Court, 2003 Term – Forward: The Constitutionalisation of Democratic Politics’
118 Harvard Law Review 29 (2004)
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60. active role in seeking to settle the pressing political questions befuddling our
nation. The comparative analysis that followed highlighted that while in
countries like the United States of America and Canada there has been real
zeal in adopting the practice of judicialisation of politics, closer to home in
jurisdictions such as South Africa the courts have adopted a more conservative
approach of purely interpreting the law and encouraging would be litigants not
to bring political disputes to the courtroom.
CHAPTER SIX
CONCLUSION AND RECOMMENDATIONS
6.1 Introduction
What can be gleaned from what has been discussed in the foregoing is the fact
that the practice of judicialisation of politics is growing in popularity and may
indeed reach a point where it is generally accepted by most jurisdictions. What
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61. will be underscored however in this chapter that will proffer some
recommendations and conclude this study is the fact that the very process of
political judicialisation should be contextualised. While there might very well be
justification for judicial intervention in the political affairs of some countries,
this may not be so in some others.
6.2 Recommendations
To start with, judicialisation of politics has traditionally found its best
expression in thriving democracies where the very notion of politics is that of
democratic politics and the very notion of court involvement in politics is, as
Pildes61
so glowingly put it, ‘judicial oversight of democratic politics’. So to start
with, a judiciary that takes it upon itself to adopt the practice of judicialisation
of politics must, it is presumed, be strong and independent. Ugochukwu62
succinctly encapsulates this notion stating thus:
‘A strong, independent judiciary operating with substantial institutional legitimacy
may be suited for such political exertions. On the other hand, a dependent and
weak judiciary, struggling with its image, risks losing what little it has by taking
political cases’ (my emphasis)63
The later part of the notion alluded to above, ‘a dependant and weak judiciary’
‘struggling with its image’ is precisely the position our judiciary finds itself in.
While there was nothing unbecoming, however startling and unprecedented it
was, in the Constitutional Court taking an overtly political stance of setting a
general election date and ordering the Executive to comply with it thus tacitly
adopting the practice of judicialisation of politics, this is not a role our courts
61
Pildes R Ibid.
62
Ugochukwu B ‘The Pathology of Judicialisation: Politics, Corruption and the Courts in Nigeria’ The
Law and Development Review: Vol. 4: No. 3, Article 4
63
http://www.osgoode.yorku.ca/sites/default/files/research/Ugochukwu%20-%20LDR
%20Article.pdf
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62. can perform properly and it is submitted any further involvement by our courts
in deciding political questions should not be encouraged.
This is so when one considers the ilk of judges that currently sit on our
superior courts. As was alluded to in the third chapter, there has been a
general tendency by our Courts to lend its process to the service of the State in
high profile cases as opposed to being an impartial arbiter. Simply put, our
judiciary invariably sides with the Executive where high profile cases are
concerned. This likely has its roots in the fact that our Constitution creates an
all powerful Executive President that thus leaves an independent judiciary
existing solely at his whim which when one looks at recent trends, is clearly
the case. This is made worse by the fact that in Zimbabwe, like some other
nations, the judicial budget is controlled by the Executive. As our Chief Justice
Godfrey Chidyausiku bemoaned at a certain forum:
‘I am constrained to mention one threat which has survived the test of time –
traversing both the past and modern. This is none other the control of the judicial
budget by the executive ... For he who pays the piper controls the tune. I shall say
no more!’64
Such a perceived backdrop makes fatal any perceived attempts by our judiciary
to adopt the practice of judicialisation of politics because any politically
sensitive matters that come before the courts, more so the high profile ones,
will have the the Executive as an interested party which invariably will set the
judiciary and executive on a collision course that will inevitably leave the
executive as the winner. The reality is we have a weak and dependant judiciary
that is struggling with an image of consistently pandering to the wishes of the
64
Presentation by the Hon. G.G. Chidyausiku, Chief Justice of Zimbabwe ‘Modern Challenges To
the Independence of the Judiciary’ Conference and Annual General Meeting of the Southern
African Chief Justices’ Forum, Johannesburg, South Africa: 13 – 14 August 2010
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63. executive in high profile cases. Such a state of affairs leaves our judiciary
totally unsuited to perform the practice of judicialisation of politics and any
attempts to venture further with this in future could further erode the public
confidence in our courts.
This state of affairs is exacerbated by the sections 93 and 143 of the New
Constitution that seek to give a political role to the Constitutional Court.
Section 93 that deals with Presidential Election Petition expects the court to
deal with the petition on the basis of the papers filed without explicit reference
to hearing of viva voce evidence and within a rather stringent deadline of 14
days. This makes it doubtful how the court can then be expected to make a
politically responsible decision.
Even when one closely considers the Mawarire judgment – the most prominent
example of judicialisation of politics to date, it at first glance looks like a sign of
judicial independence, but when one uses the ‘inner eye of the mind’ it is far
from it. The President, who is the head of the executive, even before the case
was heard had repeatedly expressed his desire to hold elections early after the
passage into law of the new Constitution on the 22nd
of May 2013. The fact that
the Constitutional Court ordered for early elections to be held against the
express provisions of the Constitution in what the Deputy Chief Justice
rightfully pointed out defied logic, fit very well with the wishes of the President,
who unsurprisingly agreed wholeheartedly with the court order. This clearly
was, albeit veiled, in sticking with the trend by our courts to abide by the
wishes of the executive in high profile cases. One cannot, however attractive it
may sound, encourage adoption of judicialisation of politics as long as our
judiciary is in its present state.
This is not to imply that our courts are dysfunctional and can no longer serve
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64. any purpose. The real challenge is in high profile cases our courts will
invariably side with the executive due to the circumstances alluded to above. In
the English case of Jayesh Shah & Another v HSBC Private Bank Limited65
HSBC Bank sought security for costs for a claim by Zimbabwean businessman
Jayesh Shah of US$300 million in damages. The bank had argued that if
litigation went ahead it was not going to be able to recover its costs against
Shah, arguing that Zimbabwe, ‘did not have a functional legal system’ and that,
‘the judges were beholden to the Executive’ and as such this would cause
problems in enforcing the judgment in Zimbabwe. Davis J handing down the
judgment of the Court of Appeal of England and Wales held that Zimbabwe had
a functional legal system and no contrary evidence had been placed by any
advocate practising in Zimbabwe to support the defendant Bank’s negative view
of the country’s legal processes. Commenting on the judgment, Advocate
Thabani Mpofu noted,
‘It’s a disciplined judgment which refuses to borrow from political rhetoric. It is a
judgment steeped firmly in legal principle and generates, one might say, a lot of
good will on an international plane in so far as our judicial processes are
concerned’66
The point that is to be made here is that it is not in dispute that our judiciary
is functional. The challenge is our judiciary is not sufficiently equipped to play
a political role rendering fatal any moves towards judicialisation of politics.
Thus it is recommended in light of judicialisation of politics taking root in our
jurisdiction that:
65
Unpublished, see Munyoro F ‘UK Gives Zim judicial system thumbs up’
http://www.sundaymail.co.zw/index.php?option=com_content&view=article&id=8543:uk-gives-
zim-judicial-system-thumbs-up&catid=37:top-stories&Itemid=130#.UzKaUpsoTFg
66
http://www.sundaymail.co.zw/index.php?option=com_content&view=article&id=8543:uk-
gives-zim-judicial-system-thumbs-up&catid=37:top-stories&Itemid=130#.UzKaUpsoTFg
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