The Herald (Harare)

25 February 2013

Zimbabwe: No Way, President Tells NCA

Zimbabwean Justices

PRESIDENT Mugabe has dismissed a High Court application by the National Constitutional Assembly seeking to set aside the gazetted referendum date or holding of the referendum, saying it was up to the people of Zimbabwe not pressure groups to decide whether or not to approve the draft constitution.

The President, using powers vested in him under the Referendums Act, last week set the referendum date for March 16 through Statutory Instrument 19/2013. But Professor Lovemore Madhuku and the NCA are contesting the proclamation. The NCA argues that the date was too near and that there was no adequate time for the nation to analyse, study and appreciate the draft constitution.

They cited President Mugabe in his official capacity together with the acting chairperson of the Zimbabwe Electoral Commission as respondents.

In an opposing affidavit filed at the High Court last week, President Mugabe, through Justice and Legal Affairs Minister Patrick Chinamasa, said in terms of the Referendums Act, the publication of the referendum date was the prerogative of the President.

He said those against the holding of the referendum or the draft constitution were at liberty to campaign for a No Vote rather than stopping the process.

"It is not true that the announcement of the date was without prior warning. This process has been going on for four years and it was public knowledge that in terms of the Global Political Agreement the draft constitution was to be put to a referendum," President Mugabe said.

Wide consultations have already taken place through the first Stakeholders' Conference, the outreach programme, the Second Stakeholders' Conference, Parliamentary debates and consultations by members of Parliament in their constituencies.

The Head of State and Commander-in-Chief of the Zimbabwe Defence Forces said it was without merit to suggest that it was gross injustice unless the date was extended.

The deponent does not say what gross injustice would be occasioned.

Moreover, the applicants are not seeking an order extending the date. What is sought as appears in the draft is an order to stop the referendum date. Adequate public consultations, debates and civil education have already taken place. The one month will give ample opportunity to the people to make up their minds. Copies of the constitution are being made available in different languages.

He said the lifespan of the present Parliament would end on June 29 this year, hence the need to have the new Constitution passed and that the electoral legislation be amended to harmonise it with the new Constitution before that date.

The suggestion that respondents were in a hurry which does not accord with the democratic practices has no merit whatsoever.

In his founding affidavit, President Mugabe said it was up to the people of Zimbabwe to decide on the day of voting whether or not the time given to analyse the draft was adequate.

"The draft constitution has been prepared and what the people are being asked to do is vote for or against it. In deciding how to vote, the voter will of course take into account whether sufficient time has been given and any other relevant issues.

"The monopoly for making the decision does not lie with the applicants," he said. He said a voluntary association had no power to impose its views on the President, Government or any other person.

"They are not an authority on constitution-making and their views do not take precedence over those of others, " he argued.

A membership of 120 000, which is denied, cannot hold an entire country to ransom. The legitimate representatives of the people in terms of our Constitution are elected in a general election. A voluntary association such as the Ist applicant cannot by any imagination appoint itself as the arbiter of what is people-driven . Ist respondent is and remains no more than a pressure group.

The NCA's views, President Mugabe said, could not be accepted as the views of the citizenry of the country.

"If it (NCA) wishes to evaluate itself to that level then it must revise its objectives, reduce its independence and guidance on donors and seek the support of the people as a political party," he said.

He said political parties in the Global Political Agreement would not be subordinated to pressure groups.

"The fact that the applicants disagree to the approach taken by the political parties in the GPA is not an issue of concern to the courts or to the public in general for that matter," he said.

Whether the process was dominated by political parties is totally irrelevant to these proceedings.

In terms of the Referendums Act, whenever the President considers it desirable to ascertain the view of voters on any question or issue, he may declare that a referendum takes place and appoint a day for the holding of the referendum.

President Mugabe said the application by the NCA was not urgent as the applicants had not made out a case for the relief which they seek.

"It is not clear whether the application is a review of the decision of the President to call for a referendum or whether it is an application for a declaratur that the proclamation is unlawful and ultra vires the Referendums Act," he said.

The applicants have not demonstrated what harm or prejudice they would suffer if the referendum is held on March 16, 2013.

NCA and its leader want the President to give the nation at least two months to debate and analyse the draft before the referendum.

The matter is expected to be heard today.

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Zimbabwean Justices

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