Zimbabwe’s Dual Legal System
By Derek Matyszak
20th June 2013
Zimbabwe is often stated to have a “dual legal” system, whereby traditional
customary laws run parallel to the formal and statutory laws of the State.
However, it now seems increasingly possible to say that another duality is
emerging, the law as it is and the law as interpreted by ZANU PF, its
sycophants, acolytes and supporters, overt or covert. Curiously enough Dr.
Madhuku has recently made several odd pronouncements on the law which are
closer to the latter than the former and seem more in keeping with his
announced intention to venture into politics, than as a legal expert.
His latest such pronouncement, if the Herald of Monday 17th June 2013 is to
be believed, is that Mugabe is unable to approach the Constitutional Court,
as requested by SADC, to extend the 31st July election date deadline, as was
ordered in the Mawarire case on the 31st May, 2013. The apparent basis for
this contention is that the Concourt is unable to alter an order which has
already been implemented.
This contention is bizarre. Subsection 38(4) of the Electoral Act
specifically allows the dates given in an electoral proclamation to be
changed by the President. According to Dr. Madhuku’s argument, since the
Constitutional Court order has already been implemented, the President would
be free to use subsection 38(4) to move the election date beyond the 31st
July, without being in contempt of court, as he had already implemented the
order as required. This is manifestly not so. The clear import of the
Concourt order is that whatever election date is proclaimed, either as
originally set or as altered, it must be one which ensures that the election
takes place before 31st July. (And here we are supposed to ignore the
argument advanced by Dr Madhuku and the Minister of Justice in 2008 around
the date for the Presidential run-off election, that “the election” does not
mean the date of voting but the entire electoral process ending only upon
the announcement of the result – an argument which now seems forgotten in
applying the Concourt order).
It seems necessary to state the obvious. The logic of the Concourt judgment,
and the order issued, is that the election date the President must set, must
be one that ensures that the election is held before the 31st July. If he
wishes to use section 38(4) to change this date, to avoid being in contempt
of court, he must approach the court to indicate why he is unable to apply
the order – as he did so many times before in the case of the court orders
issued around the by-elections.
There is a difficulty here, however. The basis upon which the extension
could have been requested has changed. Initially it seemed that the
President could not comply with both the Concourt order and the Constitution
and electoral legislation. The Constitution requires a 30 day intensive
registration process which the parties agreed in Cabinet had commenced on
the 9th June (though which the Minister of Justice has since claimed was
somehow self- implementing the moment the new constitution was passed). The
Electoral Act provided/provides that voter registration must end the day
before the nomination court sits. Thus the nomination court could not sit
before the 9th July, and, as the Constitution provides that elections can be
held no sooner than 30 days after this, bringing elections to the 9th
August, there could be no simultaneous compliance with the Concourt order.
Furthermore, the new constitution also provided that the Electoral Act could
not be changed once the election dates had been announced. As the
constitutionally mandated amendments were unlikely to come before parliament
before the 17th June, and the new constitution requires a minimum 44 day
period between the proclamation of the election date and the election itself
(now interpreted to mean election day), once again it seemed that the need
to amend the Electoral Act meant that the Concourt order could not be
complied with without breaching the Constitution.
The President attempted to deal with both these problems by use of the
Presidential Powers (Temporary) Measures Act (PPTMA). He thus issued
Regulations, purportedly under that Act, not only incorporating the
amendments to the Electoral Act relating to proportional representation etc,
but also, reportedly, to change the Electoral Act so that voter registration
may continue after nomination day.
This then supposedly resolved the problem of the constitutional requirement
of the 30 day intensive registration period and the difficulty of amending
the Electoral Act before proclaiming the election dates. The extension of
31st July deadline on the ground of unconstitutionality was thus seemingly
extinguished.
However, the Regulations issued under the PPTMA are themselves
unconstitutional. This is not on the basis of section 134 of the new
Constitution, which precludes Parliament from delegating its law making
authority, as the Prime Minister’s office has suggested, since is not yet in
effect. It is because both the old and new constitution specifically require
that electoral law is made only “by an Act of Parliament” and emphasises
this is so particularly in relation to voter registration, a provision, as
noted above, that the President has purported to alter by Presidential
Regulation and not an Act of Parliament.
In considering the extension of the July, 31st the Concourt may be asked to
rule that using the Presidential Powers (Temporary Measures) Act, as the
President has done, to alter the Electoral Act is illegal, and that the
problems relating to the amendment to the Electoral Act and the 30 day
registration period remain, rendering the 31st July date constitutionally
impossible.
However, the same judges who will adjudicate this matter have been reluctant
to interpret the PPTMA as being restricted in this way by the Constitution.
In 2002 in the matter of Tsvangirai v Registrar General, when precisely this
issue was raised, only Sandura JA dealt with the point, holding that the
PPTMA could not be used to amend electoral legislation. The remainder of the
judges sidestepped the issue, and (astoundingly) held that Tsvangirai did
not have the right to approach the court (locus standi) on the matter.
Furthermore, if the President or the Minister of Justice makes the
application for the extension, neither of the two could be expected to
suggest to the court that the use of the PPTMA to amend electoral
legislation, was illegal, now the sole basis for the extension.
An alteration of the 31st July deadline will also be a tacit admission by
the Court that its order in the Mawarire case was legal nonsense. It will
thus be a matter of no little interest as to how these judges will approach
the Application to change the date, which has now been filed by the
President.
Derek Matyszak, a lawyer and senior researcher at the Research and Advocacy
Unit in Zimbabwe.