PRESIDENT Mugabe's appeal against a decision by the High Court in Bulawayo directing him to set the election date for by-election in three vacant House of Assembly constituencies in Matabeleland was yesterday dismissed by the Supreme Court.
In an order handed down yesterday, Chief Justice Godfrey Chidyausiku gave the Head of State and Government and Commander-in-Chief of the Zimbabwe Defence Forces up to August 30 this year, to publish a notice ordering the by-election to fill in the three parliamentary posts in Nkayi South, Bulilima East and Lupane East constituencies.
Justices Vernanda Ziyambi, Paddington Garwe, Anne-Mary Gowora and Yunus Omerjee concurred with the decision.
The posts became vacant after three MDC legislators Abednico Bhebhe, (Nkayi South) Njabulo Mguni (Bulilima East) and Norman Mpofu (Lupane East) were expelled from the party and subsequently relieved of their parliamentary positions.
The three former legislators instituted the court action after declaring their interest to contest in the constituencies as independent candidates.
The Supreme Court's full bench upheld the High Court's decision and made some alteration to the order.
"It is ordered that the appeal is dismissed with costs. The order of the lower court is altered to read as follows--
"The application is granted. The respondent (President of the Republic of Zimbabwe) is hereby ordered to publish in the Gazette a notice ordering new elections to fill the vacancies as soon as possible, but by no later than 30 August 2012.
"There will be no order as to costs," read the operative party of the Supreme Court ruling.
Justice Nicholas Ndou in October last year directed the President to ensure the by-elections for the three vacant posts in Nkayi South, Bulilima East and Lupane East are held despite the financial challenges Government is facing.
The President, through Justice and Legal Affairs Minister Patrick Chinamasa, submitted in the High Court proceedings that there were more than three constituencies awaiting by-elections. This, he argued, required US$38 million.
In the appeal papers filed by the Civil Division in the Attorney General's Office, the President argued that the High Court correctly interpreted Section 39(2) of the Electoral Act, but went on to give an order contrary to the law. Section 39(2) of the Electoral Act reads:
"The President shall within a period of 14 days after he or she has been notified of this section of a vacancy in the membership of Parliament or a declaration is made by the chief election officer in terms of Section 50: "of a nomination day or the last nomination day as the case may be, where no person has been duly nominated for election, publish a notice in the Gazette ordering a new election to fill the vacancy in the same manner with changes that may be necessary as is provided in Section 38 in regard to general election and the provisions of this Act shall apply accordingly."
The President also argued that the High Court wrongly granted a mandatory order against the Head of State and Government when the Act relied upon did not make the proclamation of the election date peremptory.
Bhebhe, Mguni and Mpofu were elected members of the House of Assembly in the 2008 general election under the MDC ticket and they fell out of favour with their party resulting in their expulsion in 2009.
In terms of Section 4(1)(e) of the Constitution of Zimbabwe, the Clerk of Parliament notified the three that their membership had been terminated with effect from July 22, 2009.
The Speaker of Parliament notified the President of the development as required by the law on August 17 2009.
The President did not make the expected proclamation, prompting the trio to approach the higher court.