■2^13 -02- i 1 ^
P BAG 7704, CAUSEWAY ZIMBABWE
 |
IN THE HIGH COURT OF ZIMBABWE HELD AT HARARE
IN
THE MATTER BETWEEN
HC
3>
THE NATIONAL CONSTITUTIONAL ASSEMBLY (NCA)
And
PROFESSOR
LOVEMORE MADHUKU
1st APPLICANT
2nd APPLICANT
And
THE
PRESIDENT OF THE REPUBLIC OF ZIMBABWE N.O. AND
THE CHAIRPERSON/ ACTING CHAIRPERSON OF THE
ZIMBABWE ELECTION COMMISSION N.O
1st RESPONDENT
2nd RESPONDENT
URGENT CHAMBER APPLICATION
MBIDZO,
MUCHADEHAMA & MAKONI
Applicant's
Legal Practitioners 6 Duthie Avenue Belgravia
HARARE / \
/
/
■ ■
mm™ ■ .
■
IN
THE MATTER BETWEEN
THE NATIONAL CONSTITUTIONAL ASSEMBLY (NCA) 1st APPLICANT
And
PROFESSOR LOVEMORE MADHUKU 2nd
APPLICANT
And
THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE 1st RESPONDENT
AND
THE
CHAIRPERSON/ ACTING CHAIRPERSON OF THE
ZIMBABWE ELECTION
COMMISSION N.O 2nd
RESPONDENT
INDEX
NO. DESCRIPTION PAGE
1.
Index 1
- 2
2.
Urgent
Chamber Application 3
- 5
3.
Address
for service 6-7
4.
Certificate
of Urgency 8
- 9
5.
Founding
Affidavit by Professor
Lovemore Madhuku 10
- 19
6.
Press
statement as Annexure 'A' 20
- 23
7.
Proclamation
as Annexure 'B' 24
- 25
8.
Draft
Constitution as Annexure 'C 26
- 201
9.
Analysis
as Annexure 'D' 202
- 218
10.
Provisional
Order 219
- 220
DATED AT HARARE THIS 19 DAY OF FEBRUARY 2013.
4
MBIDZO
MUCHADEHAMA & MAKONI
6
Duthie Avenue Belgravia
HARARE (AM/AMM/an/48/13/BT)
TO THE REGISTRAR
High Court of Zimbabwe HARARE
AND
TO THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE
N.O.
1st
Respondent Munhumutapa Building HARARE
AND
TO THE CHAIRPERSON / ACTING CHAIRPERSON OF THE
ZIMBABWE ELECTORAL COMMISSION N.O. (ZEC)
2nd
Respondent Mahachi Quantum Building 1 Nelson Mandela Avenue HARARE
AND
TO THE MINISTER OF JUSTICE AND LEGAL AFFAIRS
N.O.
New
Government Complex 4th Street and Samora Machel HARARE
AND
TO THE DIRECTOR, CIVIL DIVISION OF THE AG
AG's Office
Respondent's
Legal Practitioners 3rd Floor, New Government Complex Cnr 3rd
Street / Central Avenue HARARE
1st APPLICANT 2nd
APPLICANT
|
IN
THE MATTER BETWEEN
THE NATIONAL CONSTITUTIONAL ASSEMBLY (NCA)
And
PROFESSOR LOVEMORE MADHUKU And
THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE N.O. I5"
RESPONDENT
AND
THE
CHAIRPERSON/ ACTING CHAIRPERSON OF THE
ZIMBABWE ELECTION
COMMISSION N.O. 2nd
RESPONDENT
URGENT CHAMBER APPLICATION
TAKE
NOTICE THAT an
Application is hereby made for an order in terms of the Draft order annexed to
this application on the following grounds:
a)
The
1st Respondent has issued a proclamation announcing the date of the
referendum which date has been given as 16 March 2013.
b)
The
2nd Respondent's commission has been ordered to take steps to hold
the referendum.
c)
The
date has been announced unilaterally and arbitrarily and does not give the
electorate adequate time to make up their mind.
d)
If
the referendum is held as promulgated, there will be little room for the
public, including civil society to debate the constitution and matters arising
therefrom.
e)
Applicants
submit that the draft constitution as promulgated does not contain the views of
the general populace.
e(i)
It is therefore necessary that the people be given an adequate
opportunity to scrutinise the constitution in order to make some informed
choices.
f)
The
constitution itself took about four years to formulate and draft.
f (i) The general people
were not involved in the drafting. It is unfair that they should be given just
about a month to make up their minds.
g)
Applicants
also submit that the constitution contain numerous undemocratic clauses which
need to be debated in order that people in general know what it is that they
should vote for.
h)
As
Applicants understand it, the vote will be a "yes' or 'no'. There is no
referendum for sections or chapters. The vote is thus indivisible. The voters
need a holistic understanding of the whole constitution in order to vote
wisely.
i) It is submitted that the passing of
any law would require widespread, thorough
and meaningful consultations by members of Parliament, politicians, civic society,
ZEC and even by individuals having their own views.
and meaningful consultations by members of Parliament, politicians, civic society,
ZEC and even by individuals having their own views.
I
(i) It is therefore necessary that there should be adequate time for such
consultations and debates.
I (ii)
A month is not enough.
j)
It is also submitted that the matter is urgent.
J
(i) The date of the referendum has
already been set.
J(ii) There is no other
avenue provided for by the law to engage the Respondents in order that they
reconsider their positions.
k)
The accompanying affidavit and documents shall be used in support of the
Application.
DATED AT HARARE THIS 19m DAY OF
FEBRUARY 2013.
MBIDZO
MUCHADEHAMA & MAKONI
6
Duthie Avenue Belgravia
HARARE (AM/AMM/an/48/13/BT)
THE REGISTRAR
High
Court of Zimbabwe HARARE
THE
PRESIDENT OF THE REPUBLIC OF ZIMBABWE N.O.
1st
Respondent Munhumutapa Building HARARE
THE
CHAIRPERSON / ACTING CHAIRPERSON OF THE ZIMBABWE ELECTORAL COMMISSION N.O.
(ZEC)
2nd
Respondent Mahachi Quantum Building 1 Nelson Mandela Avenue HARARE
THE
MINISTER OF JUSTICE & LEGAL AFFAIRS N.O.
New Government Complex
4th Street & Samora Machel Avenue
HARARE
THE
DIRECTOR, CIVIL DIVISION OF THE AG's OFFICE
Respondent's
Legal Practitioners 3rd Floor, New Government Complex Cnr 3rd
Street / Central Avenue HARARE
1st APPLICANT 2nd
APPLICANT
|
IN
THE MATTER BETWEEN
THE NATIONAL CONSTITUTIONAL ASSEMBLY (NCA)
And
PROFESSOR LOVEMORE MADHUKU And
THE
PRESIDENT OF THE REPUBLIC OF ZIMBABWE N.O. lbl RESPONDENT AND
THE CHAIRPERSON/ ACTING CHAIRPERSON OF THE
ZIMBABWE ELECTION COMMISSION N.O 2nd
RESPONDENT
c-------------------------------------------------------------------------------------
NOTICE
OF ADDRESS FOR SERVICE
TAKE
NOTICE THAT the
Applicant's address of service is c/o Mbidzo. Muchadehama & Makoni, of No.
6 Duthie Avenue, Belgravia, Harare.
DATED AT HARARE THIS 19™ DAY OF FEBRUARY 2013.
TO |
THE REGISTRAR
High Court of Zimbabwe HARARE
AND
TO THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE
N.O.
1st
Respondent Munhumutapa Building HARARE
THE
CHAIRPERSON / ACTING CHAIRPERSON OF THE ZIMBABWE ELECTORAL COMMISSION N.O.
(ZEC)
2nd
Respondent Mahachi Quantum Building 1 Nelson Mandela Avenue HARARE
THE
MINISTER OF JUSTICE & LEGAL AFFAIRS N.O.
New
Government Complex 4th Street and Samora Machel HARARE
THE
DIRECTOR, CIVIL DIVISION OF THE AG
AG's
Office
Respondent's
Legal Practitioners 3rd Floor, New Government Complex Cnr 3rd
Street / Central Avenue HARARE
1st APPLICANT 2nd
APPLICANT
|
IN
THE MATTER BETWEEN
THE NATIONAL CONSTITUTIONAL ASSEMBLY (NCA)
And
PROFESSOR LOVEMORE MADHUKU And
THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE N.O. Is' RESPONDENT
AND
THE
CHAIRPERSON/ ACTING CHAIRPERSON OF THE
ZIMBABWE ELECTION
COMMISSION N.O 2nd
RESPONDENT
CERTIFICATE OF URGENCY BY
JEREMIAH BAMU
I,
JEREMIAH BAMU a Legal Practitioner duly registered and practising as such in
Harare do hereby state that I have read the founding affidavit of Professor
Lovemore Madhuku on behalf of The National Constitutional Assembly and on his
own behalf and certify that the matter is urgent for the following reasons:-
1)
1st Respondent has unilaterally issued a proclamation
announcing the date for a referendum.
2)
The
announcement was without prior warning.
3)
The
date of the referendum is fast approaching.
3.1) It has been given as 16 March 2013 and there
is very little time left for consultations.
3.2) It is necessary that there be wide
consultations before the referendum.
4)
Unless the date is extended gross injustice will be occasioned if the
referendum is held as scheduled.
4.1) For example there is need for adequate
public consultations, debates civic education among other things.
4.2) There is need for more copies to be
availed including in vernacular languages. People then need to understand,
debate and digest the contents of the draft constitution.
4.2.1)
This cannot justly be done within the time-period left.
5)
The
Applicants have no way of engaging Respondents in order to reason out with
them.
6)
The
Respondents and those acting through them are acting in a manner clearly
demonstrative of a resolve to hold the referendum on the 16th of
March 2013.
6.1) The hurry in which
things are being done does not accord with democratic practices.
7)
It
is submitted that the Applicants have no other suitable or alternative remedy
other than to approach this Court for appropriate relief.
8)
It
is also submitted that there will be no prejudice to the Respondents or those
acting on their behalf or those supporting them should the application be
granted.
8.1)
In fact the dictates of democracy are such that reasonable members of society
would support the application.
DATED AT HARARE THIS 19th DAY OF FEBRUARY 2013.
Signed
EREMIAhf BAMU \
IN
THE MATTER BETWEEN
THE NATIONAL CONSTITUTIONAL ASSEMBLY (NCA) 1st
APPLICANT
And
PROFESSOR LOVEMORE
MADHUKU 2nd
APPLICANT
And
THE
PRESIDENT OF THE REPUBLIC OF ZIMBABWE N.O. 1st RESPONDENT AND
THE
CHAIRPERSON/ ACTING CHAIRPERSON OF THE
ZIMBABWE ELECTION
COMMISSION N.O 2nd
RESPONDENT
FOUNDING AFFIDAVIT OF
PROFESSOR LOVEMORE MADHUKU
I, Professor Lovemore
Madhuku, do hereby make oath and swear that:
1.
I
am the National Chairperson of the National Constitutional Assembly (NCA), the
1st Applicant herein. I am duly authorised to swear to this
affidavit by virtue of my position as the NCA National Chairperson. Further, I
can sear positively to the facts of this matter. The facts deposed herein, are
to the best of my knowledge and belief, true and correct.
2.
I
am also the 2nd Applicant, in my capacity as an ordinary voter with
an interest in the referendum set for the 16th of March 2013.
3.
The
Applicants' address for service is care of that of their legal practitioners of
record Messrs Mbidzo Muchadehama & Makoni, number 6th Duthie
Avenue, Belgravia, Harare.
4.
The
1st Respondent is the President of the Republic of Zimbabwe, cited herein in his official capacity of
Munhumutapa Offices, Samora Machel Avenue Harare.
5.
The
2nd Respondent is the Chairperson/ Acting Chairperson of the Zimbabwe Electoral Commission
N.O, cited herein in his/her
official capacity. His/her address is Mahachi Quantum Building, 1 Nelson
Mandela Avenue, Harare.
6. The
NCA is a voluntary association of Zimbabweans. Its main objectives
among other things are:
among other things are:
6.1
To
strive to protect, promote, deepen and broaden the concepts and practice of
democracy, transparency, good governance, justice and tolerance in the Republic
of Zimbabwe;
6.2
To
strive for initiation of the constitution making-process in Zimbabwe including:
a)
Engaging
in the process and processes of enlightening the general public on the
deficiencies and weaknesses of the current constitution of Zimbabwe and
advocating for a new constitution for Zimbabwe;
b)
Preparing
a draft or drafts of a new constitutional order for Zimbabwe.
6.3
To
strive to protect, deepen and foster a human rights culture and the rule of law
in Zimbabwe;
6.4
To
implement, incorporate, and protect in Zimbabwe international human rights
norms, as contained in important conventions such as, but not limited to, the
universal declaration of human rights, the International Covenant on Civil and
Political Rights, the International Covenant on Economic, Social and Cultural
Rights, the United Nations Convention on the Elimination of all forms of
Discrimination against Women, the United Nations Convention on the Rights of
the Child, and the African Charter on People and Human Rights.
6.5
To
work with other similarly minded organisations or individuals in Zimbabwe in
establishing or striving to establish in Zimbabwe:
a)
A
new tolerant, transparent and democratic legal, political, social and economic
order.
b)
A
new constitutional framework upon which governance can be founded
7. The
NCA was formed on 20 May 1997. It has operated since then as a
common law universitas in terms of its constitution and is now a well
established organisation known by all Zimbabweans who follow the public
affairs of our country.
common law universitas in terms of its constitution and is now a well
established organisation known by all Zimbabweans who follow the public
affairs of our country.
8.
The
mission of the NCA is to seek to ensure that Zimbabwe gets a new constitution
which is democratic and people-driven. The guiding position of the NCA is that
a "people-driven" constitution-making process is one which is led by
an independent Constitutional Commission, is not dominated by the political
leaders of the time and is genuinely inclusive in affording every interested
citizen an opportunity, not only to put forward his/her views but also to
debate with others the advantages and disadvantages of any propositions being
put forward.
9.
The
membership of the NCA is open to both individual citizens and organisations
(called "institutional members"). Our last membership estimation
exercise in August 2012 put our individual membership at one hundred and twenty
thousand (120 000). We have forty-five active institutional members, including
trade unions, human rights associations, youth groups, women's groups and
religious organisations.
10.
From
its formation in 1997, the NCA has used two approaches in its quest for a new,
democratic and people-driven constitution. The first is civic education on
constitutional issues. The second is putting legitimate pressure on the
political authorities to embrace constitutional reform.
11.
In
the February 2000 referendum, the NCA was the leading organisation in the
"Vote No" campaign. The result of that referendum was a victory of
the "No" over the "Yes".
12.
After
the February 2000 referendum, the NCA continued with civic education on
constitutional issues while at the same time calling upon the government to set
up an independent Constitutional Commission. The latter involved peaceful
protest actions while the former led to the production of constitutional
proposals for public debate entitled "Proposed Draft Constitution for
Zimbabwe, 2001". These proposals are now popularly referred to as the
"NCA DRAFT".
13.
At
some point as part of putting legitimate pressure on the government to
institute a new constitution-making process after the 2000 referendum, the NCA
approached this honourable court seeking an order to compel the President to
receive and publicise the "Proposed Draft Constitution, 2001". These
efforts are recorded in the case of National Constitutional Assembly v The President & Others 2005(2) ZLR 310(H).
I
13
14.
From
2001 to 2008, the government maintained the position that a new constitution
was not a priority and steadfastly refused to entertain the NCA's call for a
new, democratic and people-driven constitution. On its part, the NCA
intensified its civic education on constitutional issues and on many occasions,
its peaceful protest marches led to several arrests of its members.
15.
On
September 15, 2008 three political parties namely ZANU (PF) and the two
formations of the MDC signed an agreement which has come to be referred to as
the "Global Political Agreement" (GPA). Article VI of that agreement
provided for a constitution-making process led by Parliament. It was described
in the agreement as "people-driven". The NCA immediately rejected
this process as not "people-driven" precisely on the basis that it
was not led by an independent Constitutional Commission. Article VI of the GPA
was the exact opposite of what the NCA stood for because it sanctioned a
process dominated exclusively by three political parties.
16.
It
is common cause in the country that on 12 April 2009, Parliament set up a
committee called the Parliamentary Constitutional Select Committee (COPAQ which took over three and half years to produce a Draft Constitution. It
is the firm view of the NCA that the COPAC process was a mere negotiation
platform for the three political parties involved and never an avenue for
Zimbabweans to express themselves.
17.
On
17 January, 2013 there was an announcement that the leaders of the three
political parties had agreed on the final version of the Draft Constitution.
There was no official publication of the Draft Constitution. The NCA sought to
get an official copy and all its efforts were in vain. Yet, various media
outlets published contradictory statements on selected provisions of the Draft
Constitution while the spokespersons of the political parties concerned were
announcing what was described as a "YES" campaign.
18.
The
NCA was alarmed by these developments and held a Press Conference on 5
February, 2013 calling upon the government to afford Zimbabweans a genuine
opportunity to study the Draft Constitution. A copy of the Press statement is
attached hereto as Annexure
A. At that Press
conference, the NCA relied on unofficial versions of the Draft Constitution to
make its comments.
19.
On
Friday, 15 February 2013 at around 1536hrs, the NCA got a copy of the
Government Gazette as it was being delivered. The proclamation by the President
(Annexure B) contained the first official publication of the Draft
Constitution.
It also set 16 March 2013 as the date for the referendum seeking the views of
voters on the Draft Constitution. A copy of the Draft Constitution which is due
to be subjected to the referendum is attached hereto marked VC.
20.
It
is the view of the NCA that the time set by the President is grossly inadeguate
in light of the importance and complexity of the opinion being sought from
voters. At the time of the setting of the date, (a) no official copy had been
distributed, (b) there were no translated versions of the Draft and (c) no
simplified versions existed. This is still the position at the time of this
application.
21.
It
is the experience of the NCA in the over thirteen years of its existence that
ordinary citizens are capable of understanding constitutional issues if
sufficient scope is created for public debate and for the distribution of
simplified and translated versions of the constitution.
22.
The
NCA is campaigning against the adoption of this Draft Constitution for reasons
arising from its fundamentals beliefs on constitution-making processes.
23.
The
NCA has been advised that while the President has power under the Referendums
Act to decide to ascertain the view of voters on certain issues and to set
dates for a referendum, he cannot act arbitrarily. The advice received by the
NCA is to the effect that the President must act reasonably and anything
grossly unreasonable or irrational would, for that reason alone, be ultra vires
the Referendums Act.
24.
The
NCA has also been advised that it has a constitutional right to the protection
of the law under section 18 of the Constitution. In terms of that right, we are
advised that the President must act in accordance with the rule of law and at
the very least, the President must afford citizens adeguate time. How can
voters form an opinion on such complex matters without being given copies of
the Draft Constitution?
25.
The
NCA is urgently seeking the intervention of this Honourable Court to set aside
the 16 March date and order the President to give voters not less than two
months from the date of its proclamation such time will enable voters to share
the few copies being distributed and more importantly to listen to different
opinions on the issues at stake.
26.
I
am also advised that in terms of section 20 of the Constitution of Zimbabwe, my
freedom of expression entitles me, as a voter, to impart my thoughts and opinions
to other voters before the day set by the President for the
referendum.
It is my firm intention to exercise this freedom extensively as I have observed several bad provisions in the Draft Constitution. The
period set by the President is far below the reasonable period I require in
this regard.
27. The NCA is urgently seeking the intervention of this
Honourable Court to set
aside the 16 March date and order the President to give voters not less than
two months. Recently Kenya adopted its constitution after allowing its citizens
four months of debate before it was taken for a referendum. Additional time
will enable voters to share the few copies being distributed and more
importantly to listen to different opinions on the issues at stake. The NCA
seeks more time to do the following:
aside the 16 March date and order the President to give voters not less than
two months. Recently Kenya adopted its constitution after allowing its citizens
four months of debate before it was taken for a referendum. Additional time
will enable voters to share the few copies being distributed and more
importantly to listen to different opinions on the issues at stake. The NCA
seeks more time to do the following:
27.1 Distribute its objections to, and
observations on, the Draft Constitution to all
potential
voters, including observations by others. In this regard, the NCA intends to
distribute the analysis documents prepared by the Zimbabwe Lawyers for Human
Rights;
27.2 Organise meetings with potential voters
throughout the country urging them
to reject the Draft constitution;
27.3 Organise debates on some of the contentious
issues in the Draft constitution
with a view to enabling voters to form
informed opinions;
27.4 React through
Press Statements and public
meetings to the blatant
propaganda by politicians campaigning for the
Yes vote; and
27.5 Inculcate the notion of a constitution for
the people and not for political
leaders.
28. Participating in constitutional or other debates is every
person's right including
voters.
voters.
28.1 During the constitutional making process a
lot of debate and interest was generated including whether or not the process
was people driven and whether or not the views of the people and their
interests in general were captured.
28.2 In the limited time that I have had, I have
observed numerous shortcomings in the constitution.
28.2.1 These are captured in our press statement of
05 February 2013 Annexure 'A' above.
28.2.2 Other civic organisations namely Zimbabwe
Lawyers for Human Rights (ZLHR) have had preliminary observatory observations
about the draft, which observations are critical of the draft. I attach a copy
of this analysis as Annexure TJ'.
28.3
The constitution is a relatively voluminous document and contains unfamiliar
legal language.
25.4.1
There is need for translations for shorter versions, the brail versions and
thereafter adequate time to read. The translations are yet to be done.
29. I have read constitutions of other
countries particularly South Africa, Malawi, Uganda, Kenya to name but a few.
29.1 In comparison our draft falls far short of
the requirements of constitutionalism.
26.1.1
A further reading reveals a lot of cut and pasting clauses of constitutions of
other countries.
29.2 I have no doubt that if granted time people
must be able to see into the ruse that is being peddled as a draft
constitution.
29.3 There are fundamental shortcomings in this
draft constitution.
29.4 To imagine it took almost four years and over
fifty million United States of America Dollars to produce the current draft
dazzles the mind.
29.5 Voters must know and be able to decide what
exactly it is that they will be voting for.
29.6 I also make the observation that the draft
was prematurely concluded for political expedience.
29.6.1 It is public knowledge that the COPAC
Management Committee having reached a deadlock, issues were 'parked' and
referred to Political Principles who are leaders of Political parties.
29.6.2 The Principals then agreed and compromised on
issues to suit themselves. An example is the postponement of the issue of
running mates.
29.6.3 Surely members of the public especially those
who may want to exercise their right to vote must be given adequate time to
scrutinise these issues.
30. In
any representative democracy it is the right of the public to be informed
and to have an input in any law passing process, especially the constitution of
a country.
and to have an input in any law passing process, especially the constitution of
a country.
30.1 The public was deprived the opportunity to
participate before the constitution passed through parliament.
30.2 The parliamentary process was a sham as the
members of parliament simply went there to agree with each other. The Global
Political Agreement itself stipulated that the draft would be debated in
parliament for a month, yet it was debated in just three or four days. This
fell short of the reguirements.
31.
Now
the public is about to be deprived an opportunity to scrutinise the
undemocratically adopted constitution.
31.1
It is only fair that the public be given an opportunity to debate the
constitution before they cast their vote.
32.
It
is to my understanding that the voting will be for a 'YES' or 'NO'.
32.1
This is undesirable. This is the more reason why people need to understand all
the issues before they exercise their vote.
33.
I
also submit that a referendum is an election and must be held in terms of
principles governing the holding of elections.
33.1 Such principles are captured in Section 3 of
the Electoral Act (Chapter).
33.2
These
principles are also envisaged in the SADC Guidelines and Principles Governing
Democratic Elections. The same is reflected in the African Union Declaration on
the Principles Governing Democratic Elections in Africa as well as various
other international covenants.
34. When
general elections are to be held, they should be so held within four
months of the proclamation of the elections, in terms of section 58 of the
current constitution.
months of the proclamation of the elections, in terms of section 58 of the
current constitution.
34.1
In terms of Article 6(i)(c)xiii of the Global Political Agreement, the
referendum was to be held within three months of the proclamation.
34.1.2
I submit that the mentioning of the three and four months connotes the need to
give adeguate time.
34.2 One month is not such
adequate time especially for issues as fundamental as the constitution of a
country.
35.
I
am informed and verily believe that in order for the court to hear a matter
such as this, a litigant must establish that the matter is urgent so much that
it must be heard ahead of other cases that have been filed against it and
litigants run the risk of their matters being held as not urgent if they delay
in approaching the court.
36.
We
implores this honourable court to hold this matter as urgent for the following
reasons:
a)
The
date of the referendum was proclaimed on the 15 of February 2013, giving 30
days for the public to familiarise themselves with the draft constitution.
b)
The
public only started accessing the draft constitution on the 18th of
February 2013, less than 30 days before the referendum. Even so, only a
fraction of the population was able to access the draft, those who were able to
buy the Herald, and a few copies distributed from 18 February 2013.
c)
As
most of our citizens are not trained to understand the legal language contained
in legal documents such as a constitution, the draft needs to be simplified and
translated into vernacular languages and brail. CAPAC itself said as much. That
has not been done.
d)
There
are only 26 days left before the scheduled referendum, and if the matter was to
be heard in the ordinary way, there is no way the matter would have been
finalised by the 16th of March 2013, given the requirement to give
the other party at least 10 working days to respond to the application, filling
of answering affidavit, and heads of argument. Already there are matters set
down for hearing on the opposed roll beyond the date of the referendum. If the
matter would have to fit into the roll, then it will be merely an academic
exercise, as its turn will practically only come after the 16th of
March 2013.
e)
It
was not practical to file this application before the proclamation, as we had
no way of knowing that the President or the Principals in the inclusive
government were to give a 30 day notice. Only after the proclamation we were
able to learn about this short notice.
Having
learnt about the proclamation we immediately set in motion these proceedings.
We acted expeditiously in the circumstances.
g)
The
matter is of such national importance that it must be prioritised ahead of
other matters at least because the remedy being sought is the deferment of an
event that takes place in 30 days.
h)
No
prejudice will be suffered by the Government and the people of Zimbabwe. In
fact a deferment will give the Government time to source resources for the
referendum. At the time of this application Government has been struggling to
raise the resources for the referendum.
i) We
therefore pray that the matter be treated as urgent.
37. We pray that the provisional order be
granted in terms of the draft.
THUS
DONE AND SIGNED AT HARARE THIS 19™ DAY OF FEBRUARY 2013
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Before me
COMMISSIONER OF OATHS
DENFORD HALIMANI
LEGAL PRACTITIONER COMMISSIONER OF OATHS
In
the matter between:-
NATIONAL CONSTITUTION ASSEMBLY 1st
APPLICANT
AND
PROFESSOR LOVEMORE MADHUKU 2nd
APPLICANT
AND
THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE N.O 1st RESPONDENT
AND
THE
CHAIRPERSON/ACTING CHAIRPERSON OF THE
ZIMBABWE ELECTORAL
COMISSION N.O (ZEC) 2nd
RESPONDENT
PROVISIONAL ORDER
TO:
RESPONDENTS
TAKE
NOTICE THAT, on the ................... day
of............... 2013, the
Honourable Justice
........................................................ ,
sitting at Harare issued a provisional order as shown
overleaf.
The
annexed Chamber Application, affidavit(s) and documents were used in support of
the application for this provisional order.
If
you intend to oppose the confirmation of this provisional order, you will have
to file a Notice of Opposition in Form No. 29B, together with one or more
opposing affidavit(s), with the Registrar of the High Court at Harare within
ten (10) days after the date on which this provisional order and annexures were
served upon you. You will also have to serve a copy of the Notice of Opposition
and affidavits on the Applicant's legal practitioners at the address for
service specified in the application.
If
you do not file an opposing affidavit within the period specified above, this
matter will be set down for hearing in the High Court at Harare, without
further notice to you and will be dealt with as an unopposed application for
confirmation of the provisional order.
If
you wish to have the provisional order changed or set aside sooner than the
Rules of Court normally allow and can show good cause for this, you should
approach the Applicant/Applicant's legal practitioner to agree in consultation
with the Registrar, on a suitable hearing date. If this cannot be agreed or
there is great urgency, you may make a Chamber Application, on notice to the
Applicant, for directions from a judge as to when the matter can be argued.
Date
JUDGE/REGISTRAR
Statutory Instrument 19 of 2013.
[CONSTITUTION
Proclamation 1 of 2013 PROCLAMATION
by
HIS
EXCELLENCY THE HONOURABLE ROBERT GABRIEL MUGABE, Grand Commander of the
Zimbabwe Order of Merit, Presidentof Zimbabwe and Commander-in-Chief of the
Defence Forces of Zimbabwe.
WHEREAS
it is provided by section 3 of the Referendums Act [Chapter 2:10] that, whenever the President considers it
desirable to ascertain the view of voters on any question or issue, he may by
proclamation in the Gazette—
(a)
declarethatareferendumistobeheldinordertoascertain
the view of voters on that question or issue; and
(b)
appoint
a day or days for the holding of the referendum; and
(c)
state
the hours at which voting for the purposes of the referendum will commence and
will close;
AND WHEREAS, by Article VI of the Global
Political Agreement (the provisions of which are embodied as the
"Interparty Political Agreement" in Schedule 8 to the Constitution of
Zimbabwe), the Committee on Standing Rules and Orders of Parliament appointed
the Constitution Parliamentary Select Committee on the drafting of a new
constitution for Zimbabwe (referred to as "COPAC") on the 12th April,
2009, which consisted of certain Members of Parliament from the political
parties that participated in the Global Political Agreement and a
representative of the Council of Chiefs who sits in Parliament;
AND WHEREAS COPAC duly prepared a draft
Constitution for Zimbabwe, under cover of a report that was tabled before
Parliament
on the 6th and 7th of February, 2013, and adopted by Parliament;
AND WHEREAS I consider it desirable to
ascertain the view of voters on whether or not the said draft Constitution,
should be enacted as the Constitution of Zimbabwe;
135
Proclamation 1 of 2013
AND WHEREAS it is the function of the
Zimbabwe Electoral Commission to conduct referendums in terms of section 100C
of the Constitution of Zimbabwe:
NOW,
THEREFORE, under and by virtue of the powers vested in the President as
aforesaid, I do, by this my Proclamation —
(a)
declare
that a referendum is to be held in order to ascertain the view of voters on
whether or not the draft Constitution which is published in a Gazette Extraordinary together with this Proclamation should be
adopted as the Constitution of Zimbabwe; and
(b)
appoint
Saturday the 16th March, 2013, as the day on which the referendum will be held;
and
(c)
state
that, on the day on which the referendum is held, voting at polling stations
will commence at seven o 'clock in the morning and close at seven o'clock in
the evening.
Given
under my hand and the Public Seal of Zimbabwe at Harare this fourteenth day of
February, in the year of Our Lord two thousand and thirteen.
R.
G. MUGABE, President.
By
Command of the President.
Sujrplement to the Zimbabwean Government
Gazette Extraodinary dated the 15th February, 2013. Printed by the Government
Printer, Harare.
136
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