HIGH Court judge Justice David Mangota has ruled that
former President Robert Mugabe acted within the confines of the law when he
used powers invested in him through the Presidential Powers (Temporal
Amendment) Act to introduce the biometric voter registration (BVR) process
without seeking the consent of Parliament.
Justice Mangota’s ruling followed an application by a local
scholar, businessman and activist, Mfundo Mlilo, who had challenged the
gazetting of Statutory Instrument (SI) 117/2017, by the former President, which
instrument amended the Electoral Act to pave way for the BVR exercise.
“. . . It cannot, in the view of the above stated matter,
be suggested that the President’s conduct in publishing the regulations was
ultra vires the Act. He published them in terms of the existing law. The law
conferred him the power to act as he did. It was and it remains valid,” Justice
Mangota said.
Mlilo’s constitutional application came about after Mugabe,
on September 15, 2017, through Government Gazette extraordinary volume XCV
number 61, published the Presidential Powers (Temporal Measures) Amendment of
the Electoral Act Regulations as SI 117/2017.
Through his lawyer Tendai Biti, Mlilo said Mugabe’s move
had breached provisions of the Constitution.
Mugabe had, through Attorney-General (AG)’s representative
Vernanda Munyoro, opposed the application, arguing that the regulations which
he published were necessitated by the BVR exercise which the country had
adopted in preparation for this year’s general elections.
“It is evident, from the above cited portions that the
President’s discretion to make regulations is only exercised by him in the
interest of the people of Zimbabwe as a whole. He does not exercise the
discretion in the interest of a section of the population of the country,”
Justice Mangota ruled, adding that Mugabe “did not publicise the regulations
for the fun of it. He did not, as the applicant (Mlilo) alleges, make an effort
to abuse the law making function which the Act confers upon him”.
“His contention, which I agree, was that the advent of a
new voters’ roll could not properly be covered by a law which Parliament would
have introduced, debated and passed into law without interfering with the
timelines of the forthcoming 2018 harmonised elections.”
According to Justice Mangota: “Parliament could not make
law within the time which remained to deal with the situation which was then at
hand.
“Whatever processes which pertained to the introduction
into the country of a new voters’ roll required some law to be in place before
it could be embarked upon. The President, therefore, made that law in line with
his law-making function as was provided for in the Act and the Constitution.”
Justice Mangota further said Mlilo’s reading of section 134
of the Constitution was misplaced, adding he overlooked the fact that his
application related to the making of law by ministers of government and
statutory bodies. Newsday
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