Lawyers turn screws on Mugabe

HARARE - Lawyers representing three former MPs demanding elections are keeping the heat on President Robert Mugabe and have asked the Supreme Court to force the 89-year-old to gazette poll dates.

Mugabe had appeared as if he was off the hook after High Court Judge President George Chiweshe granted an application in which he wanted to be excused from complying with an earlier court order for him to gazette election dates for vacant parliamentary constituencies.

Chiweshe last week threw Mugabe a reprieve as he agreed with Mugabe’s lawyers that the term of the current Parliament is about to expire, making it impractical to hold by-elections at the 11th hour before a general poll.

But Mugabe, who has endured an epic legal battle with the three former legislators, is not off the hook yet as the MPs continue pressing.

If Mugabe accedes to their demands, then this would amount to holding a mini-general election as close to 40 constituencies are vacant.

The three MPs were expelled from Industry and Commerce minister Welshman Ncube’s MDC after crossing the floor to the bigger formation led by Prime Minister Morgan Tsvangirai in 2011.

Thabani Mpofu, the lawyer representing the three ex-legislators, yesterday said he had filed papers with the Supreme Court.

In the papers, Mpofu argues that the High Court was involving itself in a case it had no jurisdiction over.

Mpofu wants the Supreme Court to overturn Chiweshe’s judgment and compel Mugabe to hold the outstanding by-elections forthwith, notwithstanding the upcoming general poll.

In granting Mugabe the relief that he sought, Chiweshe said holding by-elections now — not only in three constituencies of Nkayi South, Bulilima East and Lupane — but also in other vacant seats and council wards countrywide would strain the country’s resources at a time when preparations for a cash-consuming poll are already underway.

“Calculated from that date, there is no doubt whatsoever that the life of the present Parliament shall end on June 29, 2013.

“On that date, Parliament shall stand dissolved by effluxion of time. It is, however, permissible to extend the life of Parliament beyond that date on grounds provided under Section 63 (5) and (6) of the Constitution,” reads part of Chiweshe’s lengthy judgment.

However, Mpofu in the notice of appeal, says the High Court erred “in relating to a matter in respect of which no course of action had been set out and in affording relief which is not supported by any known substantive principle of law”.

Mugabe, who failed to beat the March 31 date he successfully sought from the courts last year to gazette the election dates, requested the High Court to excuse him from announcing the election dates.

Mugabe got the March 31 reprieve from the High Court after the Supreme Court had ordered that he gazettes the election dates. He then returned to the High Court begging to be allowed not to comply with the March 31 date, a reprieve granted by Chiweshe last week.

Mpofu, in the latest appeal, says the High Court from the start should not have entertained a matter “it had no jurisdiction and in which it was functus officio”, creating further legal challenges for Mugabe.
Mpofu argues that the High Court cannot excuse compliance with a court order on the basis of practical or economic considerations.

“The court aquo further erred in affording relief the effect of which is to take away appellants’ (the three legislators) rights which had vested in terms of the order granted by this court and also as set out in the Electoral Act. It so erred in suborning, condoning and countenancing disobedience with its own order in the process.

“It so erred in relying on wrong provisions on the basis that such reliance had not been put in issue notwithstanding that the court had heard argument to the contrary on the issue,” reads part of the notice of appeal.

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