The chairman of the Zimbabwe Electoral Commission (ZEC) this week told the Bulawayo High Court that only Robert Mugabe as President can call for an election. The ZEC chief was responding to a court application by three MP's expelled from the Mutambara MDC.
Abednico Bhebhe (Nkayi South), Njabuliso Mguni (Lupane East) and Norman Mpofu (Bulilima East) lost their parliamentary seats when the Mutambara MDC sacked them. They responded by filing an application with the High Court to compel ZEC to call for by-elections to fill up the vacant seats.
But ZEC chief Justice Mutambanengwe, through his lawyer George Chikumbirike, told the High Court that if Mugabe doesn't call for an 'election' the ZEC cannot do it themselves. Although the court case continues, the remarks by Mutambanengwe generated headlines that suggested only Mugabe had the power to call for all types of elections in the country.
Dr Lovemore Madhuku who chairs the National Constitutional Assembly (NCA) told SW Radio Africa on Thursday 'I think that statement by Justice Mutambanengwe was referring to by-elections. It's very clear under the Electoral Act that by-elections are called by the President. There is no question of the Prime Minister coming into it.'
There was confusion in political circles as people remembered that a few months ago Prime Minister Morgan Tsvangirai said Mugabe had to consult him before he can call for elections. We asked Madhuku to clarify the confusion;
'What the MDC is referring to would be General Elections. If there ought to be elections during the 5 year period that these guys have an inclusive government, then off course the President is expected to consult the Prime Minister, but only for that period (GPA).'
Madhuku added that; 'If for example the inclusive government falls apart or it goes beyond the 5 year mandate, Mugabe remains the only person who can call for elections under the law.'
There has also been intense debate over what it means for the President to make decisions 'in consultation with' the Prime Minister.
'Those people who drafted the GPA are good English speakers and they know that there is a difference between the word consultation and the word agreement. All lawyers know that where you want agreement you would say either with the approval of or with the consent of.' As currently defined Madhuku says the clause gives Mugabe the ultimate power to go ahead, disregarding Tsvangirai's views.
SW Radio Africa also asked Madhuku about the contentious issue of whether the coalition government had a time frame. 'There is no time frame specified in the GPA itself but the time frame is clearly stipulated by law. A government elected in Zimbabwe serves for a maximum of 5 years. The GPA is simply an agreement of the political parties who were elected in 2008 to govern the country together.'
'So the GPA must come to an end on the 28th June 2013. That is the maximum because Mugabe took oath on the 29th June 2008 and under our constitution the term of office of any government is determined by the office of the President. So that is the legal limit of the GPA.' Madhuku however said there was a 'political limit' for the GPA based on an understanding by the political parties that the coalition government was temporary.