Good people,whenAlan Paton wrote Cry the Beloved Country,he certainly did not have Zimbabwe in mind but he did not how poignant and relevant his book would be for both pre and post liberation Africa. So we met Wednesday before all the principals,that is the leaders of the three political parties in the GNU.Of course Arthur Mutambara is not one to miss these kind of ostentatious gatherings. We were then asked to put our legal case across,in an adversarial court room style context.Of course all the adrenalin came back and those juices of 18 years of napoleonic battles in various court rooms were reactivated.(My God I miss the law and somehow I suspect it misses me too.) So we pontificated ,persuaded ,cajoled,submitted ,posed ,seduced and pleaded the case for the logic of order ,the return to Constitutionalism and the need for a political settlement . With calmness and patience,we argued 1) that the proclamation infringed the right of persons to vote in the 30 day period of intense voter registration as defined by Part 3, Schedule 6 of the new constitution .Particularly as in terms of section 26A of the Electoral Act voter registration closed 24 hours before the sitting of the nomination court scheduled on 28 June . 2) that the right to vote was an an inextricable extension of the right to participate freely in politics and to chose leaders of one s choice as guaranteed by section 67 of the new constitution . 3)That no proclamation could be made before an electoral act in conformity with the new constitution had been passed.Section 8 of Part 3, of the Sixth Schedule of the new constitution being very clear. 4)That section 157 of the new constitution further restated that an Act of parliament should provide for the many electoral obligations created in the same new constitution such as proportional representation etc 5) That section 131 and 322 defined what we all know ,that an Act of parliament was a law passed by both Houses of Parliament and assented to by the President. 6) That it therefore followed a fortiori that enacting through a decree ,amendments to the Electoral Act ,as purportedly done by the President on 12 June 2013 was unlawful and constitutional . 7)Without properly enacted electoral amendments by parliament ,no election can be proclaimed. 8)that in event clearly ,the Presidential Powers( Temporal Measures) Act Chapter 10:20 that had been used and that have been used much in the past were now clearly unconstitutional .By reference to section 116 and more precisely section 134 ,we pointed out that parliament s powers of law making could now no longer be given( delegated) to anyone, not even the President.Put simply the new constitution had restated and put clear markers on the tripartite chambers of state power vis the judiciary,legislature and the executive . 3) Further even assuming,that the Presidential Powers act was constitutional,a point made but not conceded ,the same could only be used in an emergency and in any event in a situation where no other law was meant to provide for the situation being dealt with.(section 2(2)(c) of cap 10:20).In this matter there was no urgency for parliament was and is still seating until 29 June.Most importantly section 157 and the 6 th schedule of the new constitution makes it clear that only an electoral act will deal with amendments. 4)We made the further point that ,we found it ironic and regrettable that ,the Con Court judgment had been based on the principle of constitutionalism,that is the need to ensure that the life of parliament ran concurrent with that of an executive to avoid rule by decree,and yet here decrees were being made when parliament was still seating. 5)We made the further point that contrary to the provisions of section 157(4) ZEC had not been consulted before the proclamation ,and the electoral regulations had been made. 6) Not only ZEC but the Prime Minister and Cabinet as is required by both the GNU codified as Schedule 8 of the old but still current Constitution as well as section 31H of the same. 7)Further section 157(5) of the new constitution made it clear that once a proclamation had been made no other Electoral law or changes to the same affecting that election could be made.Yet after the proclamation ,three other electoral proclamations had been being Statutory Instruments SI 87 to 89 of 2013. 8)Moreover ,we pointed out Patrick Chinamasa had surreptously removed in his Presidential Electoral Regulations ,section 56(1)(c) of the current Electoral Act ,being the provision that proscribes double voting in Presidential Elections in Zimbabwe .Now Zimbabwe is the only country in the world allowing double voting .And how is ,Chinamasa,going to correct this when the law says no electoral law changes can be made once a proclamation has been made. 9) All electoral law amendments were agreed in the cabinet meeting of 12 June.Yet behind our backs Chinamasa had proceeded to unilaterally amend section 26 A of the current electoral Act to allow voter registration to continue fourteen days after the sitting of the nomination court in a mendacious bid to deal with the unconstitutionality of making the nomination court seat before the conclusion of the intense voter registration on 9 July. The sum total of all this ,we submitted to President Mugabe and other principals ,was that under the guise of legality in the name of compliance with the Con -Court judgment illegalities were now being committed. In addition it was very clear ,so we put it that the President was being very badly and very dangerously being advised.Decisions were being made purportedly to serve and protect the President yet it was clear that the same were in fact undermining and embarrassing the President.Some people,I put it ,were clearly serving two gods and two masters. After this roller coaster David Coltart came in to complement and supplement the above submissions.Beautiful. When Dave was through,President Mugabe asked Chinamasa if he wished to respond ,very much to our chagrin he insisted that the arguments presented were so humongous that he needed time to respond.He stated that he was not aware that we were coming to present arguments in such court room fashion despite the fact that when President Mugabe had called for this meeting in cabinet the previous day he had made it clear that he wanted the lawyers from the three political parties to deal with the legal issues. Even when it was put to him .that these were the same arguments the parties had raised in Maputo he insisted on more time.It was even pointed out that he ought to have researched and understood the true legal position before advising the President ,he had no answer. Eventually it was agreed that we would meet at ten on Friday to hear Chinamasa who insisted that the right to reply was so important for him as his professional reputation was at stake following accusations that he had badly advised the President. Lo and behold we were all there at ten am on Friday but no Zanu person was there ,only to be told come back at 12:05. By 12 PM we were all there ,including Arthur Mutambara.Chinamasa and his colleagues were no where to be seen except Director General Bonyongwe. After an hour or so we left. Chinamasa had chickened out. But this is the least of our challenges. It is clear as a pike staff to some of us that the country is now under siege.The chaos faction and its lot are now in total control of the State. The internal Zanu succession battles have arrested the transition and the danger is we are in for a long prolonged transition. The people of Zimbabwe can not afford this.The economy has stagnated in Q1. Companies are closing.Workers and students are under attack. How Zanu can fail to see this eludes my wisdom. We will continue fighting as we have always done. Zanu is irrational and takes risks.They are prone to press the auto cruise button to self destruction-and in that mood they do not care.They remind me of the Solomonic tale of the mothers who fight over a baby.In this mood ,they are the mother who said the baby must be cut in half. The only mistake we made is the assumption that four and half years of mingling with them in the GNU they would mellow and become more rational .We were wrong. The beautiful ones are not yet born. Zikomu kwambili. Tendai Biti.
Posted on: Sun, 23 Jun 2013 09:29:58 +0000
Trending Topics
Recently Viewed Topics
© 2015